Only
a handful of off-kilter pilings sticking up in a few places above
the surface of the Indian River now mark the spot where a bustling
modern marina once stood. Just weeks after a hurricane onslaught of
historic proportions struck the central coast of Florida here at the
waterfront city of Ft. Pierce, the waters are placid, docks are being
repaired, a closed tiki bar is being cleaned out and nearly all of
the wrecked boats have been removed.
But the hurricanes of 2004 have left many people unsettled in more
than just repairs and cleanup. Marina owners throughout Florida are
struggling in a love-hate relationship with their customers. The question
of whether boats damage a marina’s docks during a storm or whether
the docks destroy the boats when they fail is no academic exercise.
Many marina managers view boats left in their slips as a hazard and
wish their customers would vacate their premises when a major storm
is imminent.
Shortly after Hurricane Jeanne delivered her coupe de grace in late
September, after the state had been pummeled by three previous hurricanes
within weeks of each other, Florida State Sen. Ken Pruitt (R-Port
St. Lucie) was quoted in local papers saying boats left in slips during
a hurricane were “battering rams” that should be evacuated
out of marinas.
Pruitt later told BoatU.S. that the issue of forcing boat owners to
remove their boats could come up in a special session of the state
legislature in December but that it was more likely to be debated
when the regular 2005 session convenes. At press time, the special
session was expected to be held the week of Dec. 13.
Current Florida law protects life over property by prohibiting marinas
from forcing boats out once a hurricane watch or warning has been
posted for that area by the National Weather Service. After 1992’s
Hurricane Andrew, a comprehensive bill was passed and signed into
law to address a host of emergency preparedness problems that surfaced
before and after that Category 5 hurricane. Marina owners at that
time wanted lawmakers to give them the right to evacuate marinas prior
to a storm; BoatU.S. and many boaters objected and the law, enacted
in 1994, explicitly protected citizens’ safety over property
on the grounds that some boat owners would have no safe place to go
or would try to “ride out” a storm on board their boats,
a potentially deadly tactic. In addition, heavily populated areas
such as south Florida don’t have nearly enough anchorages or
hurricane holes to accommodate the thousands of boats in that area.
“Whether you have one hurricane or four, the legislature and
the Florida courts have said protecting docks is not a higher priority
than protecting lives,” said Jim Ellis, president of BoatU.S.
“It’s simply unsafe to force boats out into deteriorating
conditions just before a hurricane makes landfall. Good advance planning
and preparation is what we continually stress to boat owners.”
In 1995, the law was challenged by a marina in court and the case
was dismissed. A subsequent appeal upheld the dismissal and in deciding
the case, the First District Court of Appeals noted that while boat
owners were not obligated to move their vessels prior to a hurricane,
they did “have a duty to take all other reasonable precautions
to protect the marina from harm” including properly mooring
the boat, removing loose objects and tying down items on the deck
that could not be removed.
When Hurricane Ivan was about to hit the Florida Panhandle, BoatU.S.
received frantic calls from boat owners who were being told to leave
their marinas. One was a liveaboard whose vessel’s draft was
too deep for his boat to move up into Pensacola’s shallow bays.
His other option was the make a run for Mobile, AL, which could possibly
place him in even greater danger, depending upon the hurricane’s
unpredictable path. Another boat owner was close to tears as she said
her marina had ordered them to leave and they had no place to take
their boat.
But many marinas are between a rock and a hard place as well. Hauling
boats out is one option but many marinas in Florida have very little
storage space since waterfront land is so valuable. Hauling and blocking
one boat can take 40 minutes and if the marina has one Travelift and
hundreds of boats to move, there usually isn’t enough time.
Worst-Case
Scenario
By
now, the transient docks are back open at Ft. Pierce City Marina,
also a BoatU.S. Cooperating Marina, and new plans for rebuilding the
floating docks are being drafted. This 284-slip marina made the front
pages of many newspapers after Hurricane Frances as it showed some
of the worst devastation imaginable. Some 69 boats were sunk or destroyed
when the hurricane took out concrete piers anchoring the floating
docks. By the end of October, the wreckage was gone but the financial
headaches were just starting. Damage to Ft. Pierce City Marina was
estimated to be $10 million.
Marina manager Dean Kubitschek said the marina was self-insured for
$6.5 million and when that money is used up, the city of Ft. Pierce
can apply to FEMA for public assistance grants given only to municipalities
for their disaster-related losses. Even so, Kubitschek believes marinas
should have the right to vacate their docks prior to a storm to lessen
the damage, if not prevent it.
“When that law was passed in 1994, the weather forecasting was
not as good as it is today,” he said. He said some of his marina
tenants chose to leave and headed south to Ft. Lauderdale and the
Keys or inland to Lake Okeechobee. Their boats survived with no problems,
he said. Kubitschek’s own Formosa 40 sank at the marina dock
in Frances.
The marina contract states that it is not to be considered a safe
harbor during a tropical storm or hurricane, but slipholders were
not specifically ordered out. One problem: the marina has no boatyard
and no equipment to haul boats out for land storage, although within
a few miles several other marinas do.
A
Better Plan
After 27 years in the marina business, fifth-generation Floridian
Ed Carter has endured more hurricanes than he’d like and is
busy rebuilding his devastated Diamond 99 Marina in Melbourne, FL,
a BoatU.S. Cooperating Marina. He was so quick making repairs that
his main dock, rebuilt right after Hurricane Frances, was re-ruined
by Hurricane Jeanne. “I don’t believe in sitting around,”
he said. “People need a place to put their boats.”
Diamond 99 employs a well-thought-out hurricane evacuation plan that
the marina itself helps boat owners implement, right down to lending
extra anchors and “water taxi” rides to and from a sheltered
anchorage. Diamond 99 does include language in its slip contract that
boats must be moved prior to a hurricane and for Frances all but seven
owners out of 75 adhered to the policy.
“We notify everybody in advance and work together as a team,
before it gets too bad,” Carter explained. Owners move their
vessels two miles across the ICW to the lee of Merritt Island, which
affords better protection from a storm coming from the east. The marina
helps them set two anchors with chain, plus two extra-long anchor
lines. Carter sends some of his workers along with older customers
to help them and the marina ferries people back and forth. The evacuation
takes two-and-a-half days, Carter said.
Out of the 60-plus boats moved to the anchorage, 12 were totaled during
Frances and only two during Jeanne. Of the boats left at the dock,
all of them sank, Carter said. Unfortunately, his docks were destroyed
by Frances and Jeanne. The storm surge during Frances was 10 feet
and Carter said he saw six-foot waves breaking over his docks.
“All of the boats would have been gone if they’d been
left at the dock,” he said. “There’s not a doubt
in my mind.”
Hurricane repairs will cost Diamond 99 about $200,000 for which Carter
has no insurance and disaster relief money from Federal Emergency
Management Agency (FEMA) is not available. Carter, like so many businesses
in Florida, is applying for a Small Business Association loan but
will still have to pay it back. Generally, marinas can only insure
their land-based buildings, not docks, because the cost would be prohibitive.
What’s
Covered?
The
flip side of the eviction issue being debated in Florida is about
who should pay for dock damage after a hurricane. Since marinas can
rarely afford dock insurance, even if they could get it, the trend
has been moving toward collecting from boat owners. BoatU.S. Marine
Insurance VP of Claims Carroll Robertson said after each big hurricane
she has seen dock contracts contain more and more language holding
slipholders responsible for marina damage.
Boat owners with very basic insurance policies have no coverage for
claims by a marina based on contractual liabilities, as opposed to
the owner’s negligence, and are most likely on the hook to defend
themselves, Robertson said. Normally, insurance policies do not cover
contractual liability, that is costs the insured could be required
to pay as a result of a contract he or she signed. But in “Act
of God” catastrophes such as hurricanes, usually each damaged
party is responsible for their own damage, either personally or under
their insurance.
However, the BoatU.S. yacht policy is more specialized and if an insured’s
dock contract contains language holding them responsible for marina
damages, they would be defended and any damages decided by a court
would be covered up to the limits of the policy. The marina must file
suit and prove negligence on the part of the boat owner.
“It’s a heavy burden of proof on the marina to prove that
this boat did this particular damage to this dock,” she explained.
“Can they show that the boat owner was negligent or did not
take reasonable care?”
Robertson spent two months in Florida overseeing hurricane claims
processing and said in the Panhandle she saw marinas that were evacuated
but still destroyed by Hurricane Ivan. When the I-10 bridge in Pensacola
was wrecked by Ivan’s storm surge lifting concrete slabs of
highway, it’s unlikely a marina could prove that a small fiberglass
boat was the cause of the dock damage, she said.
“In the Panhandle a lot of marinas were trying to persuade owners
to leave, but the problem is: where are you going to go?” Robertson
said. “If the drawbridges are already locked down due to high
wind you have no choice but to stay put.”
A
Storm in the State House?
In
getting ready for the special legislative session, Marine Industry
Association of South Florida President Frank Herhold said in November
0the industry is more interested in measures to have boat owners held
responsible for dock damage than in rolling back the 1994 hurricane
eviction law.
The current law’s provision that boat owners properly secure
their boats prior to a storm “has no teeth,” he said,
and there are many instances from the 2004 hurricanes in which boats
were left unattended or boat owners tied up to docks not theirs and
simply left. As far as filing suit against boat owners to collect
damages, he said most marina owners don’t have the resources
for that much legal action.
“Some of our members wanted the right to evict boat owners right
up until a warning is issued, but we don’t want to go that route,”
said Herhold. “Our concern is who pays for what.”
— By Elaine Dickinson
©BOATU.S.
MAGAZINE 2004 
