Maritime Law Blog

The maritime lawyers of Brais Law were successful in defeating a tug and barge company's attempt to dismiss an injured seaman's claim for punitive damages and attorney's fees for the willful delay of providing medical care. Maritime law requires a shipowner to provide a seaman injured within the course and scope of employment medical care until a qualified doctor declares the seaman at a point where medical care can no longer improve the condition. The Supreme Court recently in the case of Atlantic Sounding Co. Inc. v. Townsend found a shipowner can be liable for punitive damages if it willfully, arbitrarily or capriciously denies or delays in providing medical care to an injured seaman. Brais Law argued its client's case fell inside the perimeters of Townsend thereby allowing the pursuit of punitive damages as well as attorney's fees.

Brais Law's client worked for a tug boat and barge company as a deckhand and unlicensed engineer. On May 27, 2010, he suffered an injury while working on a tug boat performing duties in connection with a salvage operation ("First Incident"). This incident caused two cervical herniated discs. On June 1, 2010, the employers tendered a physician's assistant to care for the spinal injury. The physician's assistant gave the following orders: "No strenuous activities including line handling and heavy lifting." On June 4, 2010, the physician's assistant ordered an MRI and added the following additional orders: "No strenuous activities including line handling and heavy lifting, pulling or pushing." The seaman reported back to work that day.

On June 14, 2010, the physician's assistant referred the seaman to a neurosurgeon and provided following orders: "light duty restrictions." On July 23, 2010, approximately five weeks after the recommendation by the physician's assistant that the seaman consult a neurosurgeon. However, the appointment was cancelled because the seaman refused to sign documents waiving certain rights. The seaman was put back to work in defiance to the physician's assistant's restrictions and on July 17, 2010 he suffered a second injury while handling heavy lines and cables, which injured his cervical and/or lumbar spine ("Second Incident"). On or around July 23, 2010, a second neurologist was agreed upon by both parties as a mutually acceptable back specialist. On January 1, 2011, after seven months of unsuccessful conservative treatment, Plaintiff underwent a fusion of his back at the C5-C7 levels with instrumentality.

Brais Law filed a multi-count complaint on behalf of the injured seaman in federal court located in Orlando, Florida. Within the complaint was a punitive damages claim for the willful, arbitrary or capricious delay of recommended medical care. The seaman's employer filed a motion for summary judgment seeking to dismiss the punitive damages claim arguing that the mere delay in providing medical care does not rise to the level of for which punitive damages can be awarded.

The Court reasoned a genuine issue of material fact exists as to whether Defendant's failure to tender a neurosurgeon, i.e., provide maintenance and cure between the First Incident and the Second Incident, aggravated Plaintiff's condition. Accordingly, the Court found it could not determine as a matter of law that Defendant's actions and/or inactions were not callous and recalcitrant or arbitrary and capricious under the Supreme Court's Townsend decision and allowed the claim to survive.

This case is important to maritime law as it establishes when a shipowner fails to tender recommended medical care and that failure causes a second accident which aggravates an injury, a shipowner may be held liable for punitive damages. Click this link to read the Court's decision.

Jupiter, Florida - The Palm Beach Post reports four people were injured in a boating accident on the Intracoastal Waterway the night of May 3rd. Palm Beach County Fire Rescue spokesman, Capt. Don DeLucia, stated the accident occurred shortly before 10 p.m. when a 19-foot boat struck a channel marker. Law enforcement and other emergency responders were dispatched to the vicinity of Frederick Small and Palmwood roads near the southeastern corner of the Admiral's Cove neighborhood to treat the accident victims. The injured boaters were taken to Jupiter Medical Center. No other details are immediately available.

The popularity of kayaking, and kayak fishing, has exploded in Florida. I have been a kayak angler for over nine years and have seen the sport grow from a few anglers pocketed in particular geographic locations to a statewide phenomenon. A few years ago, information about ocean kayak rigging and techniques was only available through trial-and-error or a close-nit network of fishermen. Today there are multiple magazines dedicated to kayak fishing and fishing shows often showcase the sport. There even is a national kayak fishing tournament where several hundred anglers participate each year. Though avid kayakers find the sport both challenging and rewarding, it is not without additional risk. The biggest man-made danger comes from the interactions between motor boats and kayaks. This is especially so in Florida where there are more registered motor boats than any other state. These two types of vessel operators must live in harmony in order to avoid accidents, injuries and deaths.

I have been involved with some close calls with motor boats whose operators were either not paying attention to where they were going or ignorant of the navigational rules. The photograph appearing at the top right tells such a story. My friend and kayak angling teammate Robinson Rodriguez (pictured above) and I were fishing off Ft. Lauderdale, Florida when I noticed a commercial sport fishing boat coming straight at me. The captain was on the bridge talking on his cell phone paying attention to what was going on in back of his boat and not where he was going. Amazed at the sheer negligence of a professional charter boat captain, I sounded my air horn. The noise got the captain's attention who immediately altered course. This was good for me but bad for Rob as the fifty plus foot craft was now heading right at him. The fishing boat notices Rob and again altered course missing his kayak by feet. The fishing lines the sportfish was trolling tangled with Rob's line. The sportfish then started dragging Rob for several yards without so much as slowing down until the lines came free. This is just one near collision of many I have experienced and Florida kayakers have several other stories. We were lucky that day and could have been seriously injured or worse if there was a collision.

This article is intended to explain the proper interaction between motor boats and kayaks by discussing some of the more commonly violated navigation rules along with the civil liabilities should a collision occur.

Several of the maritime nations in 1972 formed a set of navigational rules designed to minimize collisions. The United States adopted these rules in 1977 and has become a part of our national law. Though there are slight differences between the inland and international navigation rules, this article will only discuss the international rules as they will apply to most meetings between kayaks and motors boats in the ocean and are very similar to the pertinent inland rules.

Keeping a Lookout - Rule 5

All vessels (kayaks and motor boats) must keep a proper lookout in order to make a full appraisal of the situation and of the risk of collision. This is easy for kayakers. By simply keeping the head up a kayaker can observe what is transpiring in the area. In fact, most often I am able to hear motor boats miles before they reach my area. Be vigilant and prepare to act if a motor boat starts to come too close. Motor boaters are required to look for all craft big and small. The operator and guests should share in the responsibility of keeping an eye out for other craft. This will significantly lessen the potential of a collision.

Maintaining Safe Speed - Rule 6

Navigational Rule 6 requires every vessel at all times to proceed at a safe speed so that proper and effective action can be taken to avoid collision as well as stop within a distance appropriate with the prevailing circumstances and conditions. It makes common sense to operate a motor boat at a slower speed in areas where other less maneuverable craft are typically found such as busy inlets, bays and close to the beaches. This is most often is violated by weekend boaters -- though I have witnessed professional captains run yachts at high rates of speed mere yards from swim buoys that line many of Florida's beaches. Violation of this rule in combination with not having a proper lookout often leads to collisions.

Monitoring Radar - Rule 7

Modern radars available to the public have advanced to detect small targets on the water including kayaks. The navigational rules are written in such a way that if a vessel is equipped with operational radar, it must be used. Should a motor boat outfitted with radar collide with a kayak, it is no excuse that the radar was not turned on.

Right of Way - Rule 18

Navigational Rule 18 requires power driven vessels to give way to a non-power driven vessel. Traditionally kayaks have been paddle propelled. Manufacturers have been recently outfitting kayaks with peddle drives. Motor boats bear the same legal responsibility when encountering kayaks no matter if the craft is paddle and peddle propelled. This means when approaching a non-motorized kayak, the power boat must give the kayaker the right of way. It should also be understood a sailboat operating its engines (even when the sails are also up) are considered motor boats in the eyes of the law and must abide by the Navigational Rule 18 as if it is a motor boat.

An important exception to this rule is if the motor boat is operating in a narrow channel or inlet. In such meeting situations, the kayak must give way to the motor boat if the motor boat will likely run aground if required to give way to the kayak.

The rules governing kayaks with motors are different. If the kayak is outfitted with a motor (even an electric motor), it must follow the same rules as motor boats. This means in a meeting situation, the vessel on the starboard tack, whether it is a kayak or motor boat, has the right of way.

No matter if the kayaker is in motorized or non-motorized kayak, if a motor boat is bearing down and does not show signs of altering course, the navigation rules require the stand on vessel (the kayak) to take all necessary means to avoid a collision. This is also simply common sense.

Maritime law is particularly harsh to violators of safety laws including the aforementioned navigational rules. The Supreme Court as far back as 1873 set forth a rule of law that presumes the vessel operator at fault for a collision if, at the time of collision, the operator violated a statutory rule intended to prevent collisions. Most importantly, this presumption can only be rebutted if the operator shows not only that the violation might not have been one of the causes, or that it probably was not a cause, but that it could not have been a cause of the collision. This heavy burden is often not met.

Most kayakers stay within Florida territorial waters which are defend by the Florida Constitution as three nautical miles from the Atlantic coastline and nine nautical miles from the Gulf shore. Should a collision occur within Florida territorial waters resulting in personal injuries or death, Florida damages law will apply to the civil lawsuit to the exclusion of Federal maritime damages law.

The application of Florida damages law as opposed to Federal maritime damages law is most important in wrongful death cases. The Federal Death on the High Seas Act (DOHSA) is very limited. Under DOSHA, the estate cannot recover pre-death pain and suffering and only actual dependents can make claims. In short, if the decedent does not have a spouse or dependent children, the value of his or her life is reduced essentially to burial expenses and lost earnings the decedent would probably accrue during his life. Moreover, punitive damages are not available under DOHSA no matter how egregious the conduct of the offending boat operator. Florida wrongful death law provides much more. Florida benefits include lost of the decedent's earnings, funeral expenses but also pre-death pain and suffering. Also certain survivors such as a spouse and minor children are entitled monetary damages for the loss of comfort and guidance they would have received from their deceased loved one. Moreover, given a recent ruling by the Supreme Court, punitive damages may also be available if the motor boat operator acted willfully or recklessly in causing the collision.

Florida personal injury law allows for compensatory damages in the form of payment of medical bills, lost wages as well as pain and suffering for those injured but not killed in a collision occurring within Florida waters. Furthermore, punitive damages may also be available in certain situations.

Kayakers and boaters must be aware of the navigational rules in order to safely share Florida's beautiful waters together. It is ever so important that safety should be in the forefront of everyone's mind who goes on the water. If not, accidents will happen and people will needlessly be injured or killed.

KeyNet.com reports a vacationer from Canada nearly lost his leg in a boating accident on January 11, 2012 near Angelfish Creek, off North Key Largo. Thomas N. Davidson, 52, of Ottawa was ejected from a 16' Dolphin flats boat owned by Tom Davidson, 71, of Key Largo in a side creek off Angelfish Creek. After falling overboard, the boat circled back and ran over the younger Davidson causing severe lacerations to his leg.

The flats boat was observed circling by personal watercraft operators in the area who then noticed the injured Davidson clinging to mangroves. The watercraft riders transported Davidson to the Ocean Reef Club where he was initially treated before being medevaced by helicopter to Miami's Ryder Trauma Center. The boat later crashed into the nearby mangroves.

Bobby Dube, the officer with the Florida Fish & Wildlife Commission who investigated the boating accident, commented, "This type of accident is a very good reason why boat operators should consider installing a kill-switch on their vessels." Davidson's condition is unknown at this time.

Brais & Brais' maritime lawyers Keith Brais and Richard Rusak were asked by Florida Lawyers Mutual to contribute to an article showcasing the Ship Owner's Limitation of Liability Act. The Limitation of Liability Act enables vessel owners in certain situations to limit their liability for boating accidents to the vessel's value. Though intended to encourage American commercial shipping during a time where marine insurance was difficult to obtain, the loose language of the over 150 year law has been recently held to apply to recreational boat accidents. This little known and complicated area of maritime law routinely trips up general practice attorneys prompting Florida Lawyers Mutual, an insurance company specializing in legal malpractice claims, to address the Act in its quarterly publication.

The article entitled THE SHIPOWNERS LIMITATION OF LIABILITY ACT OF 1851: Over 150 Years Old and Still Creating Malpractice Risks for Attorneys discusses various nuances of the Limitation of Liability Act including the time in which a boat owner can invoke the protection of the Act, the shortened statute of limitations an injured person has to bring claim when the boat owner invokes the Act as well as various situations where the Act applies and does not apply.

Attorneys Brais & Rusak are Board Certified by the Florida Bar in the area of admiralty & maritime law and have previously authored a comprehensive article on the Limitation of Liability Act that was presented at the prestigious Southeastern Admiralty Law Institute annual maritime law seminar. Brais & Brais has extensive experience with the Limitation of Liability Act and are routinely engaged by injured parties to represent them when a boat owner invokes the Act's protections.

Brais & Brais' Florida maritime attorneys successfully argued that a Federal Court can hear a breach of the warranty of workmanlike performance implied in an oral repair contract as well as a breach of marine bailment dispute concerning the sinking of a recreational boat that was entrusted to an engine repairer.

In December 2009, a recreational vessel owner entered into an oral contract with an engine repairer to fix the starboard engine of a 33' Chris-Craft sportfish named CJ. At the time of the contract, the vessel was connected to shore power at its home berth in the Worldwide Sportsman Marina located in Tavernier, Florida. The repairs began at Worldwide Sportsman Marina, but soon thereafter, the engine repairer requested the vessel be moved to a berth behind his house for his convenience. The owner consented to the vessel being moved, however, the repairer did not move the vessel behind his house as represented. Instead, he moved the vessel to his neighbor's house and failed to relay this information to the owner. When the repairer shifted the vessel, he failed to reconnect the shore power or monitor the vessel. During the repair project, the vessel began taking on water from the drive shaft's packing gland. The onboard bilge pumps kept up with the intruding water until the battery life expired. The vessel sunk at its moorings causing damage to its hull, machinery, appurtenances and the owner's personal property. Had the repairer reconnected the shore power or monitored the vessel, the CJ could have been saved.

Brais & Brais, on behalf of the owner, filed a complaint against the engine repairer for damages in the United States District Court for the Southern District of Florida. The complaint asserted claims for breach of the warranty of workmanlike performance implied in the oral repair contract as well as breach of marine bailment. The repairer moved to dismiss the owner's case on multiple grounds.

First, the repairer challenged the court's authority to hear the case. He argued admiralty jurisdiction was lacking because the CJ was incapable of transportation given its engine was dismantled at the time of the sinking. In order for the court to have admiralty jurisdiction, the CJ must be classified as a vessel. Federal law defines a "vessel" as, "every description of watercraft or other artificial contrivance used, or capable of being used, as a means of transportation on water." Brais & Brais countered by arguing the test for jurisdiction is not whether the CJ is operational at its current condition but whether it was capable of transportation over water. Brais & Brais pointed out at the time the contract was formed, the CJ was floating at its home berth and the repairer even shifted the vessel to his neighbor's house using the vessel's propulsion system. The court agreed with our attorneys, determined the CJ is "vessel" for admiralty jurisdiction purposes and found it had authority to decide the dispute.

The repairer next argued the owner failed to state a claim for breach of workmanlike performance by asserting the owner, a corporation, failed to plead its agent entered into the contract on its behalf as well as the contract was not reduced to writing. The court rejected these arguments agreeing with Brais & Brais that there is no obligation to plead an authorized corporate agent entered into the contract. The court also agreed with Brais & Brais that maritime law does not require a repair contract to be written in order to possess a claim for breach of workmanlike performance.

This case is significant as it helps define a vessel for purposes of admiralty jurisdiction as well as recognizes a claim for breach of implied warranty of workmanlike performance in an oral marine repair contract. Click hear to read the order allowing Brais & Brais' client to continue with its breach of the warranty of workmanlike performance implied in an oral repair contract and breach of marine bailment claim.

Swimmers and water skiers are injured each year by boat propellers. Our Florida boat accident attorneys are often asked if the boat or engine manufactures are liable for these injuries. The law finds a manufacture of a product liable for an injured caused by that product when the design is defective and/or if there existed an alternative safer design. All too often manufactures make a business decision to not place a safer product into the market because of cost. Instead they take the approach that it is cheaper to pay the odd personal injury claim than to spend the money to produce a safer product. There is a recent trend among court cases finding manufactures for not equipment their engines with propeller guards.

Jacob Brochtrup was severally injured when he was run over by a ski boat. Brochrup brought a personal injury lawsuit against the boat and the engine manufacturer alleging the boat's ungraded propeller constituted a design defect. The jury awarded Brochrup $3.8 million dollars. The engine manufacture appealed arguing Brochtrup failed to present evidence that the engine was defectively designed and that there was an existing alternative safer design. The federal appellate court found there was significant evidence presented for a jury to conclude the engine manufacture was negligent for failing to equip the engine with a propeller guard.

In conclusion, boat and engine manufactures may be held liable for an injury caused by an unguarded propeller. If you were injured by a boat's propeller and have questions about a potential claim, feel free to contact our Florida boat injury lawyers.

There were more boating accidents in Florida last year than any other state. A part of the Florida Fish and Wildlife Conservation Commission's mission is to reduce the number of boating accidents in the state. To this end, the FWC is committed to educate and provide resources to help Florida boaters stay safe and reduce boating accidents. The FWC offers the following tips to prevent a life threatening boating accident.

Pay attention: Most boating accidents occur because the operator is not paying attention. Focus on what is happening around the whole boat.

Wear a life jacket: It doesn't matter if you are a good swimmer. A boating accident that throws you in the water can injure you and render you unconscious. Wearing life jackets saves lives. In fact, most drowning victim where described as "good swimmers".

Stay sober: Operating a boat under the influence of alcohol or drugs is not only illegal but impairs judgment and reaction time. This causes boating accidents.

Check the weather forecast: Bad weather can occur quickly in Florida and storms can be dangerous. Know the weather forecast and plan you boating outing accordingly.

Carry a charged cell phone: Anything can happen so having a phone makes sense. You can also let loved ones at home and friends know if you are going to be later than anticipated.

Don't take your maiden voyage on a busy holiday weekend: Those who have never operated a boat or personal watercraft, Jet Ski, Sea Doo, Wave Runner should not make a holiday weekend their first attempt. Crowded boating areas make the experience more difficult and more dangerous.

File a float plan: Let someone on land know where you are going and when you plan to return. If you're late, officials can be notified and will know where to start looking for you. The quicker officials know there is a problem and begin a search, the better the changes you will be rescued.

Know the boating rules before you get on the water: Boating has rules like driving. These are very importation for your safety and the safety of your guests. You can learn the rules at MyFWC.com/Boating.

If you or a loved one was injured on a boat and would like more information, please contact our Florida boating accident attorneys. The Florida boat accident attorneys at the law firm of Brais & Brais have the experience to protect your rights, the compassion to serve your needs, and the skill to obtain the compensation you deserve. To reach our lawyers you may call 1-800-499-0551 from within the U.S., Skype BraisLaw worldwide or click Contact Us to select and complete a form for a free evaluation of your case.

Brais & Brais' Maritime & Boating Accident Lawyer News Blog in January 2011 reported on a recreational boat explosion at the Delray Harbor Club Marina in Delray Beach, Florida. This tragic event caused the death of Robert Romanelli and injured two others including the owner. The explosion also resulted in significant damage to nearby boats and docks.

When presented with a maritime catastrophe which could potentially costs millions of dollars, marine insurance companies often seek the liberal protections of a little known statute called the Limitation of Liability Act. Enacted in 1851, the Limitation of Liability Act allows boat owners to limit their liability for any death, injury or property damage arising from a maritime accident occasioned without the boat owner's "privity or knowledge" to the post loss value of the boat. In the case of the Delray explosion, the owner claimed the value of the boat after the incident was only $1,000.

The purpose of the Limitation of Liability Act was to "to encourage ship building and to induce capitalists to invest money in the branch of industry." However, since the Limitation of Liability Act is broadly worded, courts have found it to apply to not only ocean going tanker and freighter but to also recreational boats - even personal watercrafts! In essence, if applied, a recreational boat owner and his marine insurance company will pay miniscule damages even though the disaster caused significant injury and death.

Another benefit the Limitation of Liability Act provides to boat owners and their marine insurance companies is the shortening of the statute of limitations to bring a maritime claim. Typically a victim of a boating accident has 3 years to bring a claim against the boat owner. However, the Limitation of Liability Act allows the boat owner to shorten that time period to only a few months. This places an undue burden on a person who is recovering from his injury or a bereaved family healing from the loss of a loved one. A common trick marine insurance companies employ is to file the "Complaint for Exoneration from or Limitation of Liability" on the heels of a maritime disaster in the hope that the injured person or family would not notice the shortened deadline or be unable to retain competent counsel in the shortened time to bring a claim. Such was the situation with the Delray explosion.

Within 4 months of the Delray tragedy, the boat owner, insured by Progressive, filed a Complaint for Exoneration from or Limitation of Liability in Florida Federal Court. In a separate filing, the boat owner asked the court to find the post loss valuation of the vessel was $1,000, enjoin the victims from filing their claims in any other Court and limit the time period for which they could file their claims. After reviewing the Complaint for Exoneration from or Limitation of Liability, the Court noticed that the boat owner did not state he even received notice of a potential claim. The Court reasoned that the Limitation of Liability Act only provided its protections after the boat owner is notified of a claim in writing. Since the boat owner did not state he received written notice of a claim, he lacked legal standing to invoke the Limitation of Liability Act and dismissed the claim. This case is significant as it takes away an arrow in marine insurance companies quiver. No longer can they rush to the courthouse and file Complaint for Exoneration from or Limitation of Liability to catch the victims of boating accidents unguarded.

If you would like to learn more about the Limitation of Liability Act please contact our Florida Board Certified Admiralty and Maritime Lawyers or read the following paper prepared by our firm and presented at the Southeastern Admiralty Law Institute:

• The Shipowners' Limitation of Liability Act: Pitfalls for the Unwary

Imagine a situation where you are hurt in a boating accident. After spending time in the hospital, you receive a letter enclosing a "Petition for Exoneration or Limitation of Liability" from a lawyer representing the owner of the boat that caused the accident. The letter states that you are required to file a claim in Federal Admiralty Court within a certain time or your claim will be abandoned. This happens to many injured boaters each year.

Signed into law in before the Civil War, the Limitation of Liability Act allows boat owners responsible for injuries to, if certain things are proved, limit their liability to the post loss value of the vessel. This Act was created to promote United States shipping for a developing nation and before boat owners could easily obtain insurance. Unfortunately, since the Limitation of Liability Act is worded to apply to "vessels" and "vessel" having been defined to include "every description of watercraft or other artificial contrivance used, or capable of being used, as a means of transportation on water", courts interpret the Act to apply to recreational boats, houseboats and even jet skies. This is an obvious unintended consequence of the Act which was meant to apply to commercial shipping.

Right to a Jury Trial

Perhaps the biggest right an injured boater looses if the owner files a limitation of liability lawsuit, is the right to a jury trial. A Petition for Exoneration or Limitation of Liability must be filed in federal court under admiralty jurisdiction. A court hearing a case under admiralty jurisdiction must do so without a jury. Consequently, an injured boater appearing in a limitation proceeding must have his case decided by the Judge rather than a jury of his/her peers.

Right to Select the Court

Usually the injured party gets to select whether the claim will be decided in a state court or federal court and also the state and city of the court's location. In Limitation proceedings, the claim must be decided in federal court. Even if the injured boater sues in state court, that action will be stayed and brought into federal court. Furthermore, if the boat owner files the limitation of liability action before the injured boater files a lawsuit against the owner, the boat owner gets to select the state and city where the case will be decided (usually where the subject vessel is located)

Generous Statute of Limitations

Under maritime law, an injured boater has up to three (3) years following the accident to bring a lawsuit against the offending boat owner. However, if the boat owner files a limitation of liability action, the three (3) year statute of limitation is shorten to usually a few months after the accident. This forces the injured boater to litigate a claim perhaps without even knowing the full extent of his/her injuries. Should the injured boater ignore the shortened deadline (also known as a "monition period") he/she will lose the right to bring a claim against the boat owner at a later date.

As seen above, the Limitation of Liability Act restricts many rights afforded to injured boaters. The Act also has many pitfalls which will trap injured boaters and their attorneys who are unfamiliar with this area of law.

If you want to learn more about the Limitation of Liability Act, please read the following article authored and presented by the attorneys of Brais & Brais at the Southeastern Admiralty Law Institute:

• The Shipowner's Limitation of Liability Act: Pitfalls for the Unwary

In nearly every case where we represent a recreational yacht / boat owner wherein the owner lost use of the yacht for a period of time, one of the first questions asked is whether they could recover loss of use damages. The answer is perhaps.

Under admiralty law, a recreational yacht / boat owner cannot recover loss of use damages while his vessel is laid up. The origin for this maritime rule is from an 1897 case called The Conquer. In that case the Supreme Court denied loss of use damages to Frederick Vanderbilt when his yacht was detained by U.S. Customs after a transatlantic voyage. Though The Conquer decision is highly criticized by the lower courts, it is the law until either the Supreme Court reverses itself or Congress passes a law allowing for such damages. As one court recently put it, "I would be less than candid if I did not also register my sense that the categorical rule of The Conqueror finds its source in the resistance of the Supreme Court to enabling one of the richest men in late nineteenth century America to recover, on questionable evidence, the 'inconvenien[t]' loss of one of his many recreational diversions. That categorical rule has, however, a broad wake, depriving the working couple in this case recovery for a monetizable loss of the central recreational activity to which they have devoted considerable personal efforts over a number of years." Courts, however, have started to chip away at The Conquer's oppressive holding. Below are just a couple of examples where courts have found loss of use damages for a recreational yacht / boat owner.

One such situation where loss of use damages have been allowed for recreational yachts / boats is where there has been a breach of a sales contract. For example, when a seller breaches the contract by not giving clean title to the yacht / boat, and the owner without title cannot register the vessel and in turn use the craft, courts have found the breach of contract is not governed under maritime law, but instead, state commercial law. If the state where you purchased the yacht (or the choice-of-law provision in the sales contract calls for the application of state law which) allows loss of use damages for recreational vehicles, courts will grant loss of use damages for the yacht / boat.

The second instance where courts allow loss of use damages for recreational yachts / boats is when there is a breach of maritime contract that contains a state choice of law provision. For example, the refurbishment of a yacht is considered a maritime contract to be governed by maritime law. However, some of these contracts call for the application of state law to govern any dispute. If the refurbisher fails to complete the contractual obligations in time call for or preformed the job poorly so that additional time is needed to properly effect the refurbishments, courts have applied the state law called for in the contract to award loss of use damages.

In conclusion, though maritime law precludes loss of use damages for recreational yachts / boats, such damages still can be awarded in certain circumstances. If you may think you are entitled to loss of use damages for your recreational yacht / boat, it is in your interests to contact a qualified maritime lawyer to discuss your claim.

Boating accidents happen all the time. Our maritime lawyers are regularly contacted by people who have been injured in such accidents. There are many question a maritime lawyer must ask to determine what rights and remedies an injured person possesses. This article is intended to give just a sketch of how a maritime lawyer analyzes a boating accident injury claim.

The first question that must be answered is where did the accident occur. This answer is key to a maritime lawyer's analysis of how to represent a injured client. If the accident occurred on "navigable waters", federal maritime law applies. If the accident occurred on" non-navigable waters", state law applies. Knowing whether the accident happened on navigable or non-navigable waters will tell a maritime lawyer the types of claims that can be brought, the standard of care owed to the injured person and the damages that can be recovered. Maritime and state law are very different from each other and lawyers who do not regularly practice maritime law oftentimes get tripped up when litigating a maritime case because they simply don't know which law applies to the accident.

After finding out if maritime or state law applies to the claim, the next important fact a maritime lawyer must know is when the accident happen. Knowing when the accident occurred will tell the maritime lawyer if the claim falls within the "statute of limitations." Simply put, a statute of limitation is the length of time in which a claim may be filed. If the accident occurred outside the statute of limitations, the law will not allow an injured person to file a lawsuit even if it could be proven that the wrongdoer is 100% liable.

Maritime law has a 3 year statute of limitations for personal injury claims (cruise line boarding passes often times shorten this time to 1 year). State statutes of limitation may be longer or shorter. For example Florida has a 4 year and Texas has a 2 year statute of limitations. This difference in the statute of limitations is not well known among non-maritime attorneys. This may prove devastating to your case especially if you hired the lawyer within 3 years of your accident, but the lawyer did not timley file the claim because he thought the longer state statute of limitations applied. A similar result may occur if the lawyer thought the shorter state court statute of limitations applies, and advises you the claim is time-barred when in fact it is not.

The next piece of information a maritime lawyer needs to know is what was the injured person's status aboard the boat. Maritime law provides for different claims, standards of care and damages depending on whether the injured person was a passenger / guest, a crewmember / seaman, or a longshore / harbor worker. Knowing the injured person's status is important in order to bring the appropriate claim.

In conclusion, maritime lawyers practice a specialized area of the law with many pitfalls that may trap non-maritime attorneys. Hiring an attorney knowledgable in maritime law who can perform a proper analysis will often times mean the difference between brining a successful claim and having the claim dismissed by the court.

The South Florida Sun Sentinel recently reported about an airboat accident in the Florida Everglades near the Miami-Dade & Broward County line wherein two people were injured when an airboat struck a tree. Airboat accidents often occur in Florida injuring several people each year. Pinpointing where the accident occured is important as the law and types of claims / damages will differ depending on if the accident happened on "navigable" or "non-navigable" waters. This article is meant to explain the differences between the law, claims and damages that govern airboat tour accidents.

The first question that must be asked is whether the accident occurred on "navigable" or "non-navigable" waters. If the accident occurred on navigable waters, Federal maritime law will govern the lawsuit. If the accident occurred on non-navigable waters, Florida state law will govern.

"Navigable waters" is not defined by any statute and is one of those legal terms which can be confusing. The Supreme Court determined navigable waters to mean waterways that are used or capable of being used as "highways of commerce." Courts generally look to see if the waterway can be used to transport a boat to the ocean or between two states. For example, if the accident occurred on a canal in the Everglades that leads to Florida Bay, the accident happened on navigable waters. However, if the accident occurred on one of the many landlocked ponds in the Everglades, the accident happened on non-navigable waters.

Standard of Care

As mentioned above, if the accident occurred on navigable waters, Federal maritime law applies. The standard of care owed to passengers under Federal maritime law is "reasonable care under the circumstances". Simply put, this means would a reasonable person act in the same manner as the airboat operator in the same situation.

If the accident occurred on non-navigable waters Florida state law applies. The standard of care owed to passengers under Florida law is the highest degree of care that is consistent with the type of transportation. This is a much higher standard than the Federal maritime law of reasonable care under the circumstances.

Types of Claims & Damages

Both Federal maritime law and Florida law recognize compensatory damages for medical bills, pain, suffering, loss of the enjoyment of life, disfigurement, mental anguish and lost wages. Federal maritime law, however, does not recognize a loss of consortium claim, but Florida law does. Loss of consortium comes in two forms (spousal and parental).

Spousal consortium is a claim brought by the spouse of an injured person. This claim allows damages that will fairly and adequately compensate the non-injured spouse for any loss by reason of the injured spouse's injury, including loss of services, comfort, society and attention in the past and in the future caused by the incident in question.

Parental consortium is a claim brought by the parent(s) or legal guardian(s) of an injured child. This claim allows damages for any loss by the parent(s) / guardian(s) by reason of their child's injury, including loss of companionship, society, love, affection, and solace in the past and in the future until the child reaches the age of majority.

In summation, the location of an airboat's accident has a direct impact on what law, types of claims and damages that can be sought. If you or a loved one was injured in an airboat tour accident and wish to know more about this area of the law, please contact our board certified maritime attorneys.

There is a well known South Florida regatta that takes place each year on Columbus Day Weekend in Biscayne Bay off Miami, Florida. Many "spectators" do not come so much to watch the race but, to party. In fact, the party that takes place along side the regatta (but is in no way sponsored or affiliated with the regatta) is often described as a "floating Mardi Gras". Drinking and boating, however, don't mix; and, there are many accidents including deaths surrounding the partying that co-insides with the regatta in years past. The below explains Florida's Boating Under the Influence Statute as well as the criminal and civil ramifications of drinking and boating.

Boating under the influence is taken seriously in Florida. A blood-alcohol level of 0.08 or more grams of alcohol per 100 milliliters of blood is considered boating under the influence. That is roughly 3-4 drinks per hour for the average male adult. Penalties for boating under the influence are:
Fines of:

a. Not less than $250 or more than $500 for a first conviction.
b. Not less than $500 or more than $1,000 for a second conviction; and

Imprisonment for:

a. Not more than 6 months for a first conviction.
b. Not more than 9 months for a second conviction.

Should boating under the influence cause a fatality, the operator will be subjected to Florida's manslaughter laws. Recently, a Destin man was convicted to just over 40 years in prison for boating under the influence which led to the death of 3 people. In that case, an 18-foot Bayliner collided with a 21-foot Sea Hunter near Marler Park in the Choctawhatchee Bay. Though the operator of the Sea Hunter survived, the 3 guests aboard were killed in the accident. The Florida Fish & Wildlife Report indicated several empty beer bottles and an empty bottle of vodka were found in the Bayliner and that the operator's blood-alcohol level was 0.19 (over twice the legal limit). It also should be noted that the operator of the Sea Hunter's blood-alcohol level was 0.7 (just under the legal limit); and, the report concluded, "both operators judgment was impaired to some extent and contributed to the collision."

Besides criminal ramifications, there are civil penalties for injuring or killing someone while operating a boat under the influence. Since the Florida statute governing boating under the influence is designed for safety, an operator will be found liable for the accident in a civil court unless it is proven the drunkenness did not cause the accident and could never have caused the accident. This is extremely hard to prove; and, a person convicted of boating under the influence will likely be found liable for the accident in a civil court.

A person injured due to boat operator's violation of Florida's Boating Under the Influence statute is entitled to fair and adequate compensation for damages experienced in the past and to be likely experienced in the future. These damages include:

1. Compensation for bodily injury resulting in pain and suffering, disability or physical impairment, disfigurement, mental anguish, inconvenience, the loss of capacity for the enjoyment of life;
2. The expense of hospitalization, medical and nursing care and treatment; and,
3. Any earnings for work time lost.

Survivors and the estate of a person who died due to boat operator's violation of Florida's Boating Under the Influence statute are also entitled to damages. Given the partying surrounding the regatta occurs within one marine league from shore, maritime law dictates Florida's wrongful death damages will apply.

Under Florida's wrongful death statute survivors may recover the following:

1. The value of lost support and services from the date of the decedent's injury to the date of death as well as future loss of support and services from the date of death. In evaluating loss of support and services, the survivor's relationship to the decedent, the amount of the decedent's probable net income, and the replacement value of the decedent's services to the survivor may be considered. In computing the duration of future losses, the joint life expectancies of the survivor and the decedent and the period of minority, in the case of healthy minor children, may be considered.
2. The surviving spouse may also recover for loss of companionship and protection and for mental pain and suffering from the date of injury.
3. Minor children of the decedent, and all children of the decedent if there is no surviving spouse, may also recover for lost parental companionship, instruction, and guidance and for mental pain and suffering from the date of injury.
4. Each parent of a deceased minor child (under 25 years of age) may also recover mental pain and suffering from the date of injury. Each parent of an adult child (25 years of age and older) may also recover for mental pain and suffering if there are no other survivors.
5. Medical or funeral expenses due to the decedent's injury or death may be recovered by a survivor who has paid them.

The estate of the decedent may recover the following:

1. Loss of earnings of the deceased from the date of injury to the date of death;
2. Loss of the prospective net accumulations of an estate which might reasonably have been expected but for the wrongful death may also be recovered if the decedent's survivors include a surviving spouse or lineal descendants; and,
3. Medical or funeral expenses due to the decedent's injury or death that were charged against the estate or that were paid by or on behalf of decedent, excluding amounts paid by, and awarded to, a survivor.

Click here for additional information on maritime wrongful death damages or contact our Florida Board Certified Maritime Attorneys.

Many times Florida personal watercraft and motor boat concessionaires rent watercraft without providing the renters with adequate, if any, instruction. Several people renting these vessels have little or no operational experience. This is a recipe for disaster. If you were injured because the rental company did not provide you with sufficient instruction or were injured by someone who rented a watercraft, you may have a claim against the concessionaire.

Florida law states:

A livery may not knowingly lease, hire, or rent a vessel to any person:

When the vessel is equipped with a motor of 10 horsepower or greater, unless the livery provides prerental or preride instruction that includes, but need not be limited to:

• Operational characteristics of the vessel to be rented.
  
• Safe vessel operation and vessel right-of-way.
  
• The responsibility of the vessel operator for the safe and proper operation of the vessel.
  
• Local characteristics of the waterway where the vessel will be operated.

Unless the livery displays boating safety information in a place visible to the renting public.

Should the concessionaire fail to give adequate instruction in accordance with Florida law, it will be found negligent per se. This means the burden is on the concessionaire to not only prove the accident did not happen because of its failure to provide adequate instruction, but the accident could not have happened because of its failure to provide adequate instruction. This burden is nearly impossible to overcome.

The maritime law firm of Brais & Brias has years of experience handling personal watercraft (jet ski) accidents as well as boating accidents. If you were injured because the rental company did not provide you with sufficient instruction or were injured by someone who rented a watercraft, feel free to contract our board certified maritime lawyers.