Recently in Florida Boat Accident Law Category

July 9, 2014

Miami Boat Accidents and a Little Known Law

Miami Boating Accident Lawyer.jpgBoat accidents are nothing new in Miami. Sun, fun, inexperienced operators and alcohol all play a role in both recent and past boating tragedies. After such horrific events there is a public outcry for more law enforcement and tougher laws aimed to prevent more injuries and deaths. This is a normal and well intended reaction. However, flying under the radar from public scrutiny is an over 150-year-old Federal law that allows boat owners, or should it be said the boat owners' insurance companies, the ability to limit the amount of money damages paid to the victims of the boat accidents to the post-loss value of the vessels. This law, known as the Limitation of Liability Act, can be devastating to an already overwhelming situation. Imagine a situation where a boat passenger who one minute was enjoying a holiday weekend and the next cannot walk or the children left parentless after the accident. This statute allows the boat owners to ask a Federal judge to limit the amount they must compensate these victims to a few thousand dollars or less.

Given the extraordinary benefits to boat owners, the Limitation of Liability Act is applied regularly. Take for example the highly publicized case involving Ernesto Hernandez who died of propeller injuries after being backed over by a boat operated by popular Miami radio personality DJ Laz (whose real name is Lazaro Mendez). The boat Mendez was operating was owned by Voli Spirits - the Vodka brand he was promoting. Our law firm learned the boat owner is exploring its limitation options and most likely will file a limitation proceeding in the United States District Court for the Southern District of Florida. Our firm is currently handling a case where a deckhand was killed while working aboard a tug. Days after the complaint was filed, his employer (who also owns the tug) filed a Limitation Action in Federal Court. Another case our law firm is handling involves a personal watercraft collision where a rider suffered multiple facial and vertebral fractures, sustained a brain injury, and has a permanent facial disfiguration due to nerve damage. The rental concessionaire company filed a limitation proceeding seeking to limit its liability to only Three Thousand Dollars. In short, boat owners will take advantage of the Limitation of Liability Act at any opportunity.

In addition to allowing boat owners to limit their liability, the law provides various strategic advantages to boat owners. The first advantage is boat owners can initiate the litigation. This is the exact opposite of a traditional litigation where the victim starts legal proceedings. By being allowed to initiate proceedings, boat owners can set the tempo and even scare victims into not bringing a claim. In addition, if the victims had already brought a lawsuit in the local state court, the statute allows the boat owners to stay those proceedings in favor of a Federal Judge deciding the case. Part and parcel of staying the state court action, the victims loses the right of having a jury decide the case.

Despite providing multiple benefits to boat owners, the Limitation of Liability Act can be overcome in certain situations. For example the law carries a strict statute of limitations. This means if boat owners do not timely file limitation proceedings the Federal Court will dismiss the limitation proceeding. Additionally, boat owners cannot limit liability in situations where the negligent action or vessel unseaworthiness was within their privity or knowledge. Furthermore, in certain instances the Federal limitation proceeding could be stayed allowing victims to proceed in state court with a jury trial. However, once the state court jury trial concludes, the case will be reinstated before the Federal judge who will decide issues of limitation.

Though the Limitation of Liability Act has outlived its stated purpose of promoting American ship building, it is still a Federal law and will be enforced by the courts. Victims of boating accidents should be aware of its existence. A detailed explanation of the Act can be found in the linked article The Shipowner's Limitation of Liability Act: Pitfalls for the Unwary which was written and presented by our lawyers at the Southeastern Admiralty Law Symposium.



July 7, 2014

Another Biscayne Bay Boat Crash Claims Lives

Biscayne Bay Boat Accident.jpgIt seems every holiday weekend someone has lost their life in a boat crash on Biscayne Bay. Ernesto Hernandez was killed in May when a boat operated by DJ Laz backed over him on Nixon Beach in Key Biscayne. On Memorial Day Weekend, Giovanna Patricia Santos was killed when the boat on which she was a passenger collided with an anchored boat near Elliot Key. Now this past 4th of July weekend, four people died and several other injured when three boats collided near Dinner Key in Coconut Grove.

This past tragedy occurred after a fireworks show. After the fireworks concluded, many boats began racing back to the marina. Reports state that a 32-foot Contender center-console boat operated by Andrew Garcia collided with another vessel owned by the Hanono family. Garcia and most of his passengers were ejected causing the unmanned boat to collide with another.

A constant theme throughout all three tragedies is alcohol. A blood alcohol level of 0.08 is the legal limit to operate a boat in Florida. In civil cases where an operator is over the legal limit and is involved in an accident, maritime law requires him to prove by the preponderance of the evidence not only that his alcohol consumption did not cause the accident but could not have caused the accident. This is a very high burden to prove.

Even though 0.08 is the legal limit, any alcohol impacts decision making and reaction time. According to Florida's Fish and Wildlife Conservation Commission, the majority of boating accidents (fatal and nonfatal) involve the consumption of alcohol. Therefore, the best practice is to avoid drinking if you are going to spend time on the water.

May 27, 2014

Weston Woman Killed in Boating Collision Near Elliot Key

Multiple news agencies are reporting on a fatal boating accident that occurred near Elliot Key late Sunday (May 25, 2014). The incident occurred between 10:30 and 11:30 p.m. when a 23' boat collided with larger 36' anchored vessel. Giovanna Patricia Santos of Weston, Florida and two men were aboard the 23' boat. The collision was so traumatic that Santos was airlifted to Ryder Trauma Center at Jackson Memorial Hospital and the men were airlifted to Kendall Regional hospital with serious injuries. Tragically Ms. Santos died from her injuries.

The operator of the boat, Felipe Escobar, is suspected of boating under the influence. Jorge Pino of Florida's Fish and Wildlife Commission stated, "Our investigators felt that there was enough probable cause based on the odor of alcohol that was coming from the operator's person for us to do a forced blood draw on him." The toxicology results are pending.

The two people aboard the anchored 36' boat vessel were sleeping at the time of the accident and weren't injured. Investigator found the anchored boat was properly lit.

WSVN-TV - 7NEWS Miami Ft. Lauderdale News, Weather, Deco

May 17, 2014

Seamen Have No Claim for Ailments Caused by Work Related Stress

Miami Jones Act Lawyer.jpgIn a rather shocking opinion, the Eleventh Circuit Court of Appeals has found seamen who develop ailments, including heart disease, cause by work related stress have no claim against their employers under the Jones Act.

The Jones Act provides seamen injured by the negligence of their employers a cause of action to recover money damages to compensate them for pain, suffering, disfigurement and lost wages caused by the injury. This Act was traditionally liberally construed in the favor of injured seamen. The recent case of Skye v. Maersk Line, unfortunately, has restricted the scope of the Jones Act. In that case, a chief mate developed left ventricular hypertrophy (a thickening of the heart wall of the left ventricle) as a direct result of excessive work hours and an erratic sleep schedule caused by the demands of his employer. The seafarer brought a lawsuit in Miami Federal Court arguing his employer caused his heart disease by negligently overworking him to the point of fatigue. The shipping company filed a motion requesting the court dismiss the claim as a matter of law arguing that no such relief in provided by the Jones Act. The trial court denied the motion and a trial was conducted. The jury found the shipping company 25% liable and awarded $2,362,299.00 to the injured seaman. The court reduced the award to $590,574.75 to account for the seaman's 75% comparative negligence. The employer appealed the decision.

The Eleventh Circuit analyzing the Jones Act and Supreme Court precedent discussing the Federal Employers Liability Act (a companion statute to the Jones Act) concluded seamen are only protected against the negligent conduct of their employers that imminently threatens them with physical impact. Based upon this legal framework, the Eleventh Circuit found injuries caused by work-related stress are not actionable under the Jones Act because an arduous work schedule and irregular sleep schedule are not "physical perils."

The final paragraph of the Eleventh Circuit's legal analysis sheds light on the outcome of the case. The court feared that by allowing such claims would "flood [the courts with] trivial suits, the possibility of fraudulent claims... and the specter of unlimited and unpredictable liability." This case is another example of the contraction of the Eleventh Circuit's treatment of seamen's claim. Such is a shame as courts historically viewed it was their duty to vigilantly protect seamen.

February 7, 2014

Florida Boat Accident Victims Can Choose the Court in which Bring a Lawsuit

Florida Boat Accident Lawyer.jpgMost Florida boat accident victims do not know there is a law on the books which allows boat owners to sue them in Federal court! The goal of such lawsuits is to obtain a ruling that either exonerates the boat owner from wrong doing or limit the amount the injured in the boating accident could receive in compensation. The Shipowners' Limitation of Liability Act passed by Congress in 1851 allows just that. Most people are also unaware this federal law also allows the boat owner to pick the court where the lawsuit must take place. Let's assume you were injured in a boating accident and your lawyer files the case in the local state court. Under the Act, the boat owner's lawyer can file a lawsuit in Federal court which could be hundreds of miles from where you live. The federal judge will then order the state court to relinquish jurisdiction requiring you to re-file your case in the federal court where the boat owner selected.

The Purpose Behind the Act

The original purpose of the case was to promote American shipbuilding in a time where insurance was not common. The idea behind the law was Americans would enter the shipping business if there existed an incentive in place to limit their liability to the ship value should an accident occur. Times have changed and most boat owners have liability insurance. However, the law is still on the books. There is, however, good news for Florida boat accident injury victims. The Eleventh Federal Circuit Court has taken a very hostile view of this act calling it "hopelessly anachronistic". Through the years, the Eleventh Circuit issued multiple legal options which have eroded the competitive edge given boat owners by the Act. What has become known as the "Signal Claimant Exception" is one such instance.

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The Signal Claimant Exception

The Signal Claimant Exception allows a Florida boat injury victim to proceed in state court despite the boat owner's federal action. In order to accomplish this, the injury victim must agree in writing to not collect on the state court judgment until the federal court decides the issue of whether the boat owner is entitled to be exonerated from wrong doing or allowed to limit the state court judgment to the value of the boat. Once this agreement is filed, the federal trial judge can stay the federal lawsuit and allowed the case to proceed in the local state court. After the state court trial, the federal case will be reopened wherein the federal judge can decide whether or not the owner should be exonerated from wrong doing or the state court jury verdict reduced to the value of the boat.

Expansion of the Signal Claimant Exception

Typically the Signal Claimant Exception scenario occurs when the Florida boat injury victim's lawyer files the state court lawsuit before the boat owner files the federal action. An Eleventh Circuit case decided this month addressed a situation where the boat owner filed the lawsuit first. That case involved a woman who was injured in a boat accident in Palm Beach County, Florida. The boat owner filed the federal action before the injured woman filed her state court lawsuit. The boat owner argued that since it "won the race to the courthouse" and filed first, it should get to decide where the trial should occur. The Eleventh Circuit rejected this argument. The published legal decision discusses at length the tension between the right of an injured person to select the location of where the case is to be tried and the right of a boat owner to have a federal judge decide issues of exoneration and/or limitation of liability. Relying on its long history of refusing to expand the rights of boat owners afforded under the Act, the Eleventh Circuit found the Signal Claimant Exception applies to situations where the boat owner files federal lawsuit was filed first.

The Florida Board Certified Maritime Lawyers of Brais, Brais & Rusak are keenly aware of the Limitation of Liability Act's nuisances. The law firm has handled several such cases involved Florida boat injury victims and have wrote comprehensive legal papers on the Limitation of Liability Act which were presented at maritime law symposiums. If you are a victim of a Florida boating accident and would like to learn more about your rights, fell free to contact us.

December 3, 2013

Tarpon Springs Man Dies After Boat Capsized Off Palm Harbor

Sad news is coming from Pinellas County, Florida. The law enforcement division of the Florida Fish and Wildlife Conservation Commission reported Stephen Chadwick of Tarpon Springs died early Monday when the 10 foot aluminum jon boat sank in the Gulf of Mexico. Investigators said Chadwick and Joseph Citro of Indianapolis were heading to meet friends at the nearby spoil islands on Sunday afternoon when their boat sank less than an hour into the trip.

The men initially held on to the boat's hull but eventually decided to swim to shore. Chadwick reportedly lost consciousness as the men approached shore. Citro performed CPR while a nearby Palm Harbor resident called 911. Both men were taken to the hospital where Chadwick later died. Citro was treated and released.

Below is a local television news report about the boat accident.

November 16, 2013

Another Passenger Medical Emergency on the NCL Norwegian Breakaway Cruise Ship

The U.S. Coast Guard was called to medevac a passenger suffering from a heart attack aboard the Norwegian Breakaway. The cruise ship's captain radioed for medical assistance around 4 a.m. on the morning of November 16th. A MH-60 Jayhawk helicopter crew was dispatched from Elizabeth City, North Carolina and met the ailing 81-year-old passenger approximately 55 miles southwest of Cape Hatteras. The passenger was hoisted onto the rescue copter and taken to Sentara Norfolk General Hospital where it is reported he is in stable condition.

The Norwegian Breakaway sails weekly from New York City to Port Canaveral, Florida and Caribbean vacation destinations. Last month the Maritime Law Blog reported on a Norwegian Breakaway passenger fractured his neck and a medical alert was called for another passenger while the cruise ship was docket at Port Canaveral, Florida.

October 16, 2013

Boat Sinks Dumping Columbus Day Weekend Party Goers and a Dog into Miami's Biscayne Bay

Miami Boat Accident Law Firm.jpgA 45-foot boat hired by a group of friends began to take on water then capsize in Biscayne Bay just off the Miami Seaquarium Sunday afternoon. Reports reveal the group was coming back from a party spot when the boat started sink. According to the Florida Fish & Wildlife Commission spokesman Jorge Pino the boat may have been an illegal charter that transported people to and from a sandbar for $20 per person. There may not have been a Coast Guard licensed captain either. The sinking boat was observed by other boaters who rendered assistance helping to tow the vessel to the beach.

This mishap is yet another in a long string of boating accidents surrounding Columbus Day Weekend in Biscayne Bay. BBR has written extensively on boat accident liability surrounding the alcohol fueled Columbus Day festivities in Miami. See our article entitled Liabilities for Boating Under the Influence While Partying in Biscayne Bay on Columbus Day Weekend to learn more.

October 1, 2013

Two Florida Tourist Water Scooter Renters Die in Collision with Tour Boat

Florida Water Scooter Accident.jpgTwo Pennsylvania tourists died over the weekend when the water scooter they rented collided with a double-decker sightseeing boat in the waters off Clearwater, Florida. Florida Fish and Wildlife Conservation Commission is currently investigating the accident. A spokesperson for the FWC, stated, "There's no determination of fault until the investigation is complete,"

This incident is the second fatal accident in September involving a water scooter in Florida. Over the Labor Day Weekend Katie Yale of Seminole died in a collision between her inner tube and a personal watercraft. Personal watercraft injuries and fatalities are often caused by the renter's lack of knowledge regarding safe operation and rules of navigation. It is for this reason, Florida has passed a law requiring personal watercraft rental companies to provide safety instruction and require in-water proficiency demonstration before allowing the craft to be rented. Unfortunately, this does not always occur.

The BBR maritime lawyers are extremely familiar with personal watercraft accidents and have successfully represent victims against rental companies.

Photo Credit: Florida Bay Times

September 6, 2013

Injured Crew Members Need Not Pay Back Maintenace and Cure Benefits

Florida Injured Crew Lawyer.jpgA landmark case from the Fifth Circuit Court of Appeals in New Orleans, Louisiana finds maritime companies are not entitled to repayment of maintenance and cure wrongly provided to injured seaman even if the crewmember lied on his employment application. Maintenance is a living stipend that employers must pay seamen injured while in service and subject to the call of the ship up until the time the medical condition plateaus. Cure is medical treatment for the injury.

A favorite tactic of maritime employers and ship owners when faced with a seaman's lawsuit is to file a counterclaim seeking to recoup wrongly paid maintenance and cure benefits. Often times the defending company will scour the employment application and pre-employment medical disclosure forms then compare these statements with the injured seaman's medical records for anything that may, in its view, be inconsistent. The company will then file a counterclaim seeking reimbursement based upon such inconsistency. This is ploy simply designed to scare the crew member into accepting a lower settlement than the true value of the case.

Facts of the Case

The Fifth Circuit in Boudreaux v. Transocean Deepwater, Inc. has put an end to this practice. Boudreaux concerned a seaman who filed a lawsuit alleging he injured his back while servicing equipment. Prior to his employment with Transocean he filled out a pre-employment medical questionnaire wherein he failed to disclose significant preexisting back problems and affirmatively wrote "no" to questions regarding prior back issues. After his on the job injury, Transocean started paying maintenance and cure. While the litigation was proceeding, Boudreaux's previous back issues were discovered. Transocean stopped paying maintenance and cure and filed a counterclaim seeking recovery of all previously paid maintenance and cure.

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Legal Analysis

The legal arguments presented to the court were maritime employers should not be caused to suffer payment of maintenance and cure to a seaman who intentionally misrepresented himself to get a job. After all, if the crew member was truthful, he would not have been hired and never had the accident. The counter-argument was requiring a seaman to pay back money to a company would conflict with maritime law's protection of seaman as it would stand as a serious impediment to a seaman's economic recovery and would have a negative impact on settlement negotiations.

The court agreed with the seaman's argument finding maritime employers ability to recoup paid maintenance and cure has no support in maritime law even though the seaman obtained those befits through dishonest means. Rewarding a seamen who are not truthful may seem like a harsh decision. The court, however, points out maritime employers need not immediately provide maintenance and cure to injured seamen. They have the right to conduct an investigation into the accident and medical condition before deciding to pay the benefits. If Transocean was diligent in investigating the claim, it would have found out that Boudreaux concealed his preexisting back injury which would have supported the denial of benefits.

Crew Injury Lawyers

If you were hurt while working aboard a ship and would like to know more about your legal rights, feel free to contact our attorneys for a free consultation. The BBR Florida Board Certified Maritime Lawyers are well versed in issues of maintenance and cure and have successfully litigated the very topic presented in Baudreaux before various trial courts.

August 29, 2013

Florida Jet Ski / WaveRunner / Sea-Doo Accident Lawyer's Analysis of Exculpatory Clauses

Floirda Jet Ski Accident Lawyer.jpgEach year thousands of people come to Florida for the sun and water. Along many of Florida's beaches are Jet Ski, WaveRunner, Sea-Doo and other personal watercraft rental companies. Often times these rental companies are staffed with part time employees who are more interested in checking out the action on the beach than the safety of the renters. These employees oftentimes give cursory instruction on how to turn on and off the watercraft, ask the renters to sign the "rental agreement" and send them off. Speed combined with inexperience and lack of instruction is a recipe for disaster.

Florida Law Addressing Personal Watercraft Rentals

Florida law requires watercraft rental companies to provide riders minimum safety instruction before turning over the watercraft to the renter. If the rental is for off-site use, an on-the-water demonstration and rider proficiency check is required. This level of instruction is often times overlooked.

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The Exculpatory Clause

Nearly every Jet Ski, WaveRunner, Sea-Doo and personal watercraft rental agreement have clauses which state in event of an accident or injury the renter will hold the rental company harmless. In other words, the rental companies seek to avoid any liability stemming from the rental of the personal watercraft. If worded properly and correct instruction is given, courts will likely to uphold the agreements. This means the injured renter will have no recourse against the rental company. However, if proper instruction is not given in accordance with Florida law, courts have ruled public policy precludes the rental companies from avoiding liability by virtue of the rental agreements. As such, it is imperative that you select a well qualified and experienced attorney to represent you should you become injured while riding a rented personal watercraft.

Experienced Personal Watercraft Accident Law Firm

Hiring a law firm is an important decision and should not be based only on advertisement. The personal watercraft lawyers at Brais, Brais & Rusak have handled several Jet Ski, WaveRunner and Sea-Doo personal injury cases and have been successful in navigating around rental agreement exculpatory clauses to achieve favorable settlements for their clients. If you were injured on a Jet Ski, WaveRunner or Sea-Doo in Florida and would like to learn more about your rights, feel free to contact us. Our Florida Board Certified Maritime attorneys will be happy to discuss your claim.

August 8, 2012

Court Allows Brais Law's Client to Pursue Claim for Punitive Damages & Attorney's Fees Against His Employer

Florida Seaman Injury Lawyer.jpgThe 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.


Keenan v. Beyel Bros.

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.


Import of the Decision

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.

May 5, 2012

Jupiter, Florida Boating Accident Injures Four

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.

January 24, 2012

Florida Kayak Accidents, Injuries, Deaths and the Law

Kayak Injury Lawyer.jpgThe 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.

Navigational Rules

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.

Civil Liability

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.

Damages

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.

Conclusion

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.

January 20, 2012

Boater Ran Over in Accident Near Key Largo, Florida

Floirda Boat Accident Lawyer.jpgKeyNet.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.