"Company's Coming" – Understanding Your Legal Liability to Guests
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 legal duties and 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.
Claim #923822A: The skipper invited a female 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 woman arrived while he was in the engine room puttering with the wiring. After a quick "yoo-hoo," she started down into the main saloon but fell when the ladder slipped out from an unsecured fitting. She wound up in the engine compartment only a few inches from the skipper. The woman'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.
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.
Claim #9306461A: A guest aboard a 27' cruiser was stepping onto the dock when, he claims, the boat rocked slightly causing him to fall and fracture his wrist. The boat owner had been friends with the man for years and was not prepared for what happened next.
The injured man got an attorney who filed suit, claiming the skipper had,"failed to secure the boat adequately to prevent excessive rocking." Further, the attorney says the defendant (skipper), "failed to provide his passengers with a proper and safe way to exit the boat, instruct them in this method and see that they received any assistance they might need. " Finally, the man had been drinking, a fact that has the potential to muddle any lawsuit.
After years of litigation and depositions the men were no longer friends.The boat owner felt he did nothing wrong, and while he had adequate insurance coverage, the claim had taken an emotional toll . The jury awarded the guest $37,500. They found that the injured guest had been 40% comparatively negligent. The boat owner was found to be 60% at fault and his policy paid the $22,500 on his behalf. An additional $16,784 was paid to the attorney who defended the case. After the plaintiff's attorney was paid his portion and the health insurance carrier's lien was paid, the plaintiff received $8,500.
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.
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."