It has been a month since Florida Marlins’ pitcher Jose Fernandez and his friends Eduardo Rivero and Emilio Macias lost their lives in a tragic boating accident in Miami Beach. Shortly after the tragedy, law enforcement reported the boat involved in the crash with the north jetty of Government Cut did not belong to Fernandez. It was later confirmed that Fernandez did, in fact, own the vessel. It has been also confirmed that hours before the accident, Fernandez was drinking at American Social, a Miami area restaurant and bar. A toxicology report recently released indicates that Fernandez had a blood alcohol level of 0.147 which is nearly twice Florida’s legal boating limit of 0.08. The same toxicology report concluded that he also cocaine in his system. Though Fernandez was legally intoxicated, it is now being suggested that he was not operating the boat at the time of the accident. This theory is based upon a witness telling law enforcement that he was on the phone with Fernandez near the time the boat struck the jetty.

Though this the accident occurred on a private boat mere yards from shore, a civil case concerning who is labile will be governed by maritime law. Maritime law is an amalgamation of decisional law dating back to ancient Greece supplemented, at times, by non-conflicting state law. From the facts known to date, there are four potential sources of liability: the boat owner, the boat operator, the alcohol server and the government.

The boat operator can be held labile for his own negligent acts which caused the accident. Under maritime law, negligent can be broken down into two categories – simple and statutory.

Simple negligence is when boat operator acted in a manner which is not reasonable or prudent under the circumstances. An example of simple negligence is when the operator turns on the LED cockpit lights at night thereby reducing his night vision.

Statutory negligence is when the boat operator violates a safety statute. Examples of statutory negligence are failing to keep a proper lookout in violation of Navigational Rule 5, operating the vessel at an unsafe speed in violation of Navigational Rule 6, and operating the vessel over Florida’s legal limit of 0.08.

There is a practical difference between simple and statutory negligence. In order to prevail under a simple negligence claim, a decedent’s estate will have to prove that the negligent act was the legal cause of the accident and death. This may be hard to prove when all the witnesses on the boat perished in the accident. In a statutory negligence case, the operator’s estate, not the decedent’s estate, will have to prove not only the violation was not the cause but could not have been a cause of the accident.

Unlike Florida land based law, maritime law does not recognize an owner’s strict liability under what is called the dangerous instrumentally doctrine. For example, if a person in Florida allows someone to borrow his car and the borrower of the car fails to stop at a stop sign causing an accident, the car’s owner, even though he was not in the car, can be held liable for the accident.

Maritime law, instead, follows what is known as the negligent entrustment doctrine. Under a negligent entrustment theory, an owner can be held liable for the wrongful acts of the person he knew, or should have known, was not capable of safety operating the boat. Examples of negligent entrustment include allowing the boat to be operated by an intoxicated person, a person who did not have the requisite training to operate the boat, or a person who was observed by the owner acting reckless while operating the boat.

It is a now a fact that Fernandez and other were drinking at American Social the night of the accident. Florida and maritime law differ as to whether American Social could be found liable. Florida has enacted what is known as a dram shop statute. This absolves bars and restaurants from any liability for an accident caused by the person whom they served alcohol. The only exceptions to the dram shop statute are accidents caused by an intoxicated minor or known alcoholic. Under maritime law, a bar or restaurant may be held liable for its negligence in overserving a patron alcohol who later injures or kills others in an accident caused by the patron’s intoxication.

The Federal Ports and Waterways Safety Act authorizes the Coast Guard to place navigational aids, including lights, in and around Government Cut. The Federal government is typically immune from liability. However, it has waived its immunity in maritime negligence cases through the Suits in Admiralty Act. Though the Federal government waived its immunity in maritime cases, it maintains a very strong defense called the discretionary function doctrine. Under this doctrine, the Federal government cannot be held liable if (1) the matter involved an element of judgment or choice, and (2) the decision was grounded in social, economic or political public policy. In cases involving failure to place navigational aid and lights, the courts overwhelmingly find Federal government not liable under the discretionary function doctrine.

As shown above, many could be held responsible for this tragedy. Our hearts go out to the families and friends impacted by this great loss.