Before your guest steps aboard...
When a
guest steps aboard, the typical boat owner
is more likely to be thinking more
about having
lunch or getting underway than worrying about his responsibilities
as "Master" of the vessel. But if that guest were to stumble and be injured, you
can bet the boat owner would quickly ponder what, if anything, could have been
done to have prevented the injury and, heaven forbid, whether he might
be
liable.
The
question of liability is both simple and complex, steeped in more than 3,000
years of maritime legal principles dating back to the Phoenicians. Admiralty
law, like land-based legal concepts, starts with the premise that a property
owner owes his invited guest a duty to exercise ordinary or reasonable care for
the safety of
the guest.
Deciding
just what constitutes reasonable care
can be especially complicated on a boat,
which is bobbing, slippery and filled with obstructions. It has a great deal to
do with the experience of the boat owner and the boating experience of the
passenger and whether the boat owner had or should have had knowledge or notice
of some dangerous condition. Additionally, it may depend on whether the owner
knew or should have known his guest was unaware of or unfamiliar with the
condition.
The duty
to exercise reasonable care is rooted in the duty to provide a reasonably safe
boat for the invited guest. This does not require that the boat be accident
proof. Under the law, the applicable standard of care requires the boat owner to
provide a boat that is reasonably safe, not one
that is absolutely safe.
A guest
also has some responsibility - a duty to exercise care for his or her own
safety. A guest
cannot simply walk blindly about the boat. But reasonable care
does mean that you may be held accountable if you fail to warn a guest, for
example, about a ladder you know is unstable.
Here is an
example of an insurance claim to illustrate responsibility: A skipper invited an
acquaintance to come by and inspect the aging sport fisherman he'd been fixing
up for two years. Like most boats that are being restored from the keel up, the
old boat was loaded with half-finished projects - wiring, cabinetry, engines,
etc. The friend arrived while he was in the engine room puttering with the
wiring. After a quick "yoo-hoo," the friend started down into the main saloon
but fell when the ladder slipped out from an unsecured fitting.
The friend
wound up in the engine compartment only a few inches from the skipper. The
friend's injuries were neither serious nor permanent, but
the skipper knew of
the hazard and failed to warn his guest, which meant that he may well have been
liable if the case had gone to court. |
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What about a clearly visible hazard such as an uncovered hatch? The law call this "open and obvious" danger, but courts have had trouble agreeing on whether you have to give someone a warning in the face of such a known risk. Some judges have ruled that the duty to warn is not imposed when you have an open and obvious condition since, under a standard of reasonable care, everyone is equally able to see the hazard. Other courts, however, have ruled that your invited guest may not appreciate the risk of what you believe is a readily apparent danger. Even more to the point, however, is the practical reality of ever-increasing numbers of lawsuits.
Not only are lawsuits expensive, they are time consuming
and take a tremendous emotional toll. Whatever legal comfort you might get in thinking that the danger is
obvious, the reality is that the situation in the legal world today instructs you should always err on the side of giving
a warning.
As an experienced skipper you know that a boat can pitch suddenly when it goes through a wake or comes about. You know to hang on until the boat is steady again. But these situations may be new and hazardous to a guest.
Clearly then, as skipper, you have the responsibility to warn an unsuspecting guest when you are aware of a hazardous situation on your boat. Further, you have a responsibility to warn guests about possible risks that are unrelated to your boat, but which are all around you: passing boat wakes, severe weather, tidal changes, etc. And, even if you are unaware of a loose railing, wobbly step, etc. or you don't see an approaching boat wake, you may still be liable for any injuries that result.
And finally, operator responsibility extends to those guests and other waterway users that are in the water. Unfortunately, propeller strikes are a common source of injury and even death. As an operator, beware and use extreme caution when people are in the water and turn off your engine anytime a person is in the water and within one boat length of the boat. Also, it is advisable to educate your guests about the dangers of swimming around a boat and how to re-board the boat properly so as to avoid injury
Remember then, the next time you welcome someone aboard, that an injury is more likely than ever to result in a lawsuit that, win or lose, could cost a fortune. When you also consider the many months of lost time and emotional strain you would live with, it might be wise to remember what a philosopher once said: "Be bold with your caution."
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