Aegean lawsuit

I always insure my boat so if my crew is hurt or injured - or God forbid killed, that there is insurance for the injury or loss. I would want my crew compensated by the insurance company.

Litigation becomes so personal which I guess is the point of conflict here. I am aware of a case where a guy was in a car accident and his girlfriend was injured. The girlfriend sued to recover for her injuries and the attorney hired by the insurance company to represent the boyfriend/driver kept referring to the boyfriend at trial as "my so called client" because the boyfriend was doing what he could do to make sure his girlfriend won.

Regarding the Aegean, the owner's family members should insist the insurance company pay the survivors - partly to compensate the loss, end litigation, and terminate any liability for the estate.

There are no winners here.
why does someone need to paid here? why do damages need to be issued?

 
The rules of our american justice system would pay the families for at least their loss of income. In some areas you could get some $$$$ emotional pain and loss?

No idea what Mexico grants families for the negligent loss of a loved one or family provider?

 

MR.CLEAN

Moderator
46,889
4,887
Not here
Might be interesting to see how established assumption of risk for sporting events precedent interacts with maritime principles if this thing ever goes to court. IIRC California has strong A of R doctrine when skiiers or horsey riders get hurt or dead (codified, even?). Imagine it would be at least as strong for yacht racing. Anyone have a copy of the waiver that NOSA required?
I'd be very interested to see this also.

Or, can one write a valid waiver for crew to sign to help protect the skipper? Some accidents are acts of god that can not be specifically forseen (although not this one). Our legal system would like to believe otherwise.
Waivers are best used to show that the injured party was informed of the danger and voluntarily took on the activity regardless.

But as many have already said, it would have to be a danger that was foreseeable and usual for the activity (actual language differs from state to state), and crashing into an island while under autopilot is (hopefully) not a usual or foreseeable activity in a typical sailboat race. I guess we'll finally get to see the evidence soon that the CG has been sitting on for all this time...can't hold anyone responsible when there's still no official word on what happened!

 
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[email protected]

Super Anarchist
2,288
211
USA
of course, theres always a chance (perhaps very remote) that some sort of mechanical failure or series of failures prevented them from altering course to avoid the island.

 
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[email protected]

Super Anarchist
2,288
211
USA
I always insure my boat so if my crew is hurt or injured - or God forbid killed, that there is insurance for the injury or loss. I would want my crew compensated by the insurance company.

Litigation becomes so personal which I guess is the point of conflict here. I am aware of a case where a guy was in a car accident and his girlfriend was injured. The girlfriend sued to recover for her injuries and the attorney hired by the insurance company to represent the boyfriend/driver kept referring to the boyfriend at trial as "my so called client" because the boyfriend was doing what he could do to make sure his girlfriend won.

Regarding the Aegean, the owner's family members should insist the insurance company pay the survivors - partly to compensate the loss, end litigation, and terminate any liability for the estate.

There are no winners here.
why does someone need to paid here? why do damages need to be issued?
oh i dont know, mustang. Perhaps the kids should just go shake the money tree out back so they can go to college? the grieving families should just let the house go into foreclosure, and move into a small apartment that they can afford without dad's income, sound good? ...youve got a lot to learn, boy

 
from the thread of the Mac26? that was overloaded and lives lost in DAGO

under Maritime Law any claim or liability is limited to the Value of the Ship

think that was mentioned in the Concordia cruise ship thread too

But then again:

Back to Maritime Law

http://www.mycounsel...gal_issues.html

Defeating limitation of liability

in maritime law

An anachronistic law can still prevent fair recovery for plaintiffs who

suffer losses on the waves

By Tim Akpinar

From the February issue of 2006 Trial magazine, the magazine of The Association

of Trial Lawyers of America. Posted with permission of Trial (February 2006) Back to Kayak and Canoe Links

Copyright The Association of Trial Lawyers of America

Back to Recreational Boating Accidents

Back to Boating Accident Legal Issues

Before a Staten Island ferry struck a pier on October 15, 2003, killing 11 people and injuring more than 60, most of

the passengers were unaware of an arcane concept of maritime law known as limitation of liability. They soon saw how

a law meant to protect shipowners during the age of sail was invoked to prevent them from achieving a full and fair

recovery for their losses.

 

Under the Limitation of Shipowners’ Liability Act of 1851,1 a shipowner may limit liability for losses from negligence

or unseaworthiness arising without his or her privity (participation and involvement) and knowledge. Liability is

limited for loss of life, personal injury, and loss of or damage to cargo. The act can also limit liability to the value of

the vessel or the shipowner’s interest in the vessel and revenues earned from carrying passengers and cargo.2

 

After an investigation revealed that the pilot in the Staten Island ferry crash had passed out at the helm, the city of

New York, citing the act, filed a complaint seeking to limit its liability to $14.4 million, the postcasualty value of the

ferry.3 However, the National Transportation Safety Board introduced a formidable barrier to limiting liability when it

blamed the accident on the city’s poor oversight of its ferry fleet and its failure to provide the fleet with effective

safety measures.4

 

When the law was enacted, there was a compelling reason to limit liability. Going to sea was a venture filled with peril

and uncertainty. Wrongful death, personal injury, and cargo damage claims from a sinking or catastrophic fire could

expose a shipowner to liability far greater than the value of the vessel. This could discourage vessel owners and

investors from engaging in maritime commerce.

 

The law limits liability for things a shipowner cannot control, such as the negligent actions of an officer on the other

side of the world. It also limits liability for unseaworthy conditions of which the owner could not reasonably know.5

Limitation of liability was invoked in the loss of the Titanic, which in April 1912 struck an iceberg and sank, taking

more than 1,500 lives. In the wrongful death and injury lawsuits that followed, Supreme Court Justice Oliver Wendell

Holmes held that the Titanic’s British owner should be allowed to limit liability to the ship’s postcasualty value, which

amounted to about $92,000 for a cluster of its remaining lifeboats.6

 

The Titanic case demonstrated that U.S. courts would allow a foreign steamship line to invoke American limitation

law. Almost a century later, the issue raises concerns that owners of foreign liquid-natural-gas vessels could be

protected from liability following a catastrophic explosion in a U.S. port.

 

The act was amended in 1935 as a result of another maritime tragedy, the loss of the Morro Castle. The liner caught

fire off the New Jersey coast on September 9, 1935, and foundered on the beaches off Asbury Park. One hundred

thirty-seven passengers and crew died.

 

The success of the owners in limiting their liability to the $20,000 residual value of the ship’s charred remains

prompted passage of the Loss of Life Amendments.7 Applying to seagoing vessels only, the amendments provided that

if the salvage value of the vessel was insufficient to satisfy wrongful death and injury claims, a limitation fund of $60

per ton salvaged would be established. The limitation fund was increased in 1984 to $420 per ton.

 

Limitation of liability has even been applied in boating accidents. For instance, a boat owner raised limitation of

liability when his recreational boat caught fire at a Lake Michigan marina. The fire spread and damaged several of the

surrounding vessels.8

 

When the owner attempted to limit liability to the $800 salvage value of the boat, the federal trial court dismissed his

petition, finding that it lacked jurisdiction to hear the case. The circuit court affirmed, but the U.S. Supreme Court

reversed and remanded back to the trial court, finding that maritime jurisdiction is appropriate “when a ‘potential

hazard to maritime commerce arises out of activity that bears a substantial relationship to traditional maritime

activity.’”9

 

This means that if the steering cable snaps on a worthless outboard skiff, causing it to crash into a blameless vessel,

the owner of the skiff may limit a paralyzed passenger’s award to the $150 scrap value of the wrecked skiff. This

concept has even been extended to personal watercraft, with the Eleventh Circuit limiting recovery for injuries caused

by a Jet Ski accident.10

 

The act does not apply to every maritime mishap. The act cannot be invoked in environmental casualties involving the

Oil Pollution Act of 1990 (OPA 90),11 Rivers and Harbors Appropriation Act,12 or Wreck Act.13 However, OPA 90

establishes its own limitation guidelines, providing that with respect to each incident, the liability of a responsible

party shall not exceed:

 

1. for a tank vessel, the greater of $1,200 per gross ton;

 

or in the case of a vessel greater than 3,000 gross tons, $10,000,000;

 

or in the case of a vessel of 3,000 gross tons or less, $2,000,000;

 

2. for any other vessel, $600 per gross tons or $500,000, whichever is greater.

 

Liability cannot be limited if the environmental incident was caused by gross negligence, willful misconduct, or the

violation of applicable federal safety, construction, or operating regulations. Also, if the responsible party fails or

refuses to report the incident, provide reasonable cooperation and assistance, or comply with an order under §1321©

or (e) of OPA 90 or the Intervention on the High Seas Act,14 limitation of liability would be denied.

 

A shipowner also cannot limit liability for crew wages, maintenance, and cure. Maintenance and cure cover a seaman’s

living and medical expenses, respectively, and constitute economic damages. Therefore, a seaman does not need to

demonstrate the negligence of the employer or the unseaworthiness of the vessel to qualify for them.

Owner’s complaint

 

According to the Federal Rules of Civil Procedure,15 a vessel owner may file a complaint to limit liability in the

appropriate district court no later than six months after receiving a written claim of loss. The complaint should include

the date and place of the incident, the vessel’s current location and value, the amount of freight received and

recoverable, and the amount of all demands by injured parties.16

 

The complaint may be filed in any district where the vessel has been attached, arrested, or sued or, if not in a suit, in

any district where the vessel is physically present. If the vessel sank in any navigable water, any district may be

named.17

 

The shipowner may also invoke limitation by pleading it as an affirmative defense in his or her answer to a lawsuit.18

By invoking limitation with a complaint rather than waiting to answer, however, the shipowner exercises control over

venue (although venue can be transferred by the plaintiff’s motion). Another benefit to the shipowner of invoking

limitation with a complaint is that it consolidates all claims stemming from a marine casualty. The court then enters

an injunction barring claimants from pursuing their claims outside the limitation action.19

 

For merchant mariners and commercial fishermen, the Saving to Suitors Clause20 favors the plaintiff who acts first.

Commercial mariners recognized as “seamen”21 enjoy special remedies under the Jones Act.22 A Jones Act case

brought in state court is generally not removable to federal court because of the Saving to Suitors Clause. However, a

defendant shipowner can file a motion to remove the case to federal court.

 

If the shipowner acts first and files a limitation complaint, the case goes to federal court. By moving first and filing a

lawsuit in state court, the plaintiff can preempt the shipowner from selecting venue. If the shipowner doesn’t act

within six months of receiving written notice of the claim, the plaintiff is free to initiate an action in the forum of his

or her choice.

 

When the defendant shipowner files the complaint for limitation of, or exoneration from, liability, he or she should

expect it to be challenged by the plaintiff’s motion to lift the limitation stay. Before the district court will dissolve the

injunction, the plaintiff must stipulate that the value of the limitation fund equals the combined value of the vessel

and its cargo; waive the right to claim res judicata based on any judgment rendered against the vessel owner outside

of the limitation proceedings; and concede the district court’s exclusive jurisdiction to determine limitation of liability.

23

 

As the Titanic and Morro Castle cases showed, the value of a severely damaged ship can be meager. Even with the act’

s amendments, insurance carriers are protected from large wrongful death and injury claims. And because the

proceeds of hull insurance do not enter the limitation fund—even though owners are compensated for their losses—

that money remains out of the reach of marine casualty victims.

 

Sink or swim

To defeat limitation of liability, either as a complaint or an affirmative defense, the plaintiff attorney must

demonstrate the vessel owner’s privity and knowledge of negligent operations or dangerous conditions that resulted in

the loss. This can include the owner’s knowledge that personnel failed to follow prudent practices or standard

operating procedures—that is, they failed to comply with necessary training, properly qualify officers and crew for

standing watch, properly verify backgrounds of crew members, or take action after learning of alcohol or drug abuse.

 

The focus is on the shipowner’s knowledge, actual or imputed, of negligent conduct. If the shipowner had no reason to

know of the crew’s negligence—for example, an errant navigational error—liability could be limited. The shipowner

has the burden of demonstrating that he or she did not have privity or knowledge of the negligence or

unseaworthiness giving rise to the loss.

 

If a shipowner argues that he or she exercised proper care in discovering conditions that rendered a vessel

unseaworthy, the ship’s records and logs will help verify that claim. If Coast Guard inspections reveal, for instance,

boiler safety valves that failed to lift during tests, emergency-fire-pump diesel engines that failed to start on demand,

watertight doors that failed to operate remotely, or lifeboat davits that failed to descend, the shipowner will find it

difficult to argue that he or she did not have knowledge of these problems.

 

Similarly, in a case involving crew fatigue, relevant evidence would include time sheets, watch schedules, and medical

records. If a claimant could show that excessive overtime, absence of relief personnel, or known medical conditions

led to crew fatigue, the owner would be responsible.

In fighting liability limits, do not overlook the limitation fund. If you represent a seriously injured claimant and the

ship is valued at $15,000, the $420 per ton allowance in the Loss of Life Amendments would apply. For a 10,000-ton

ship, the fund would be $4.2 million.

 

Case law

One recent case testing the scope of liability limits was brought by a cruise ship passenger who was injured while

operating a Jet Ski when she was struck by another Jet Ski.24 Both vehicles had been rented from the cruise line.

The injured passenger argued that the cruise line failed to properly train and supervise the operators, allowed too

many vessels to operate in a restricted area, failed to enforce safety rules, and failed to check operators for

intoxication.25

The district court found that because the passengers had received instructions from the cruise line, the cruise line was

not liable. The court also found that even if the cruise line were liable, it could have limited its liability to the $7,200

value of the Jet Skis, as none of the line’s owners or senior management was present or had knowledge of negligence.

26

 

In a Fifth Circuit case, two work boats collided in fog on the Mississippi River in Louisiana.27 The captain of the

defendant’s vessel had not used a lookout or turned on his running lights. Although the vessel had radar, the captain

had not been aboard the day it was installed and was not trained in its use (other than being given a manual to read on

his own). Because the vessel had been running at full speed, engine noise made it difficult to hear the radio or fog

signals of other vessels.

 

The Fifth Circuit affirmed the district court’s decision to deny limitation of liability. It found several failures that

attributed privity and knowledge of unseaworthiness to the vessel owner, including failure to use a lookout, to train

the captain in the use of radar, to evaluate the vessel’s unseaworthiness (which became relevant with the engine

noise), to inspect vessel logs, to employ a safety manager, and to provide safety training and safety manuals.28

In a federal district court case, deckhands on a passenger ferry were preparing the vessel for debarkation shortly

after docking. A gate became dislodged from its track and fell on one of the deckhands, fracturing his hip and three

foot bones.29

 

The court held that the deckhand’s own negligence, together with the negligence of another deckhand, had

contributed to his injuries. But the court also found the ferry to be unseaworthy and denied limitation of liability. It

concluded that if the gate had been equipped with a locking device, it would have opened fully and locked in place

rather than being knocked off its tracks. The court noted that such a device was called for in the vessel plans and that

the owner installed one after the deckhand was injured, showing that this safety measure was economical and feasible.

Industry changes

 

Technology and vessel management have evolved tremendously since the liability limitation act was adopted in 1851.

Satellite communications, global positioning systems, reliable power plants, and modern construction have minimized

many perils of going to sea. In addition, strict requirements for inspection, classification, underwriting, and personnel

standing watch have made it less plausible for owners to assert lack of privity and knowledge of vessel and crew

deficiencies.

 

Passenger vessels of U.S. registry must meet Coast Guard safety regulations and be inspected annually.30 These

regulations cover hull structure, watertightness, structural soundness to minimize fire hazards, lifesaving and

firefighting equipment, vessel control, and requirements pertaining to the safe navigation of the ship. Any U.S.-

registered ship that passes the Coast Guard’s annual inspection must display its certification where passengers can

see it.31

 

Many passenger vessels in U.S. ports are registered under foreign flags. Although the owner may be headquartered in

the United States, foreign registry allows the owner to avoid U.S. taxes and labor laws. However, foreign vessels that

pick up passengers in the United States are subject to inspection because the Coast Guard enforces the International

Convention for the Safety of Life at Sea.32 The Coast Guard examines foreign passenger ships when they first go into

service at U.S. ports and conducts quarterly inspections thereafter. The Coast Guard observes lifeboat drills and

conducts tests on other safety equipment.

 

U.S.-registered passenger vessels can comply with Coast Guard inspection requirements by submitting to surveys

performed by an authorized classification society, such as the American Bureau of Shipping. Classification societies

set technical standards for ship design and construction. To ensure compliance, these organizations use professional

surveyors who specialize in various aspects of a ship, such as the hull, machinery, or piping.

Crew competence is critical to safe vessel operation. The International Convention on Standards of Training,

Certification, and Watchkeeping for Seafarers (STCW) sets qualification standards for masters, officers, and watch

personnel on seagoing merchant ships.33

 

As amended in 1995, STCW requires rest periods of 10 hours in any 24-hour period for crews keeping watch. It also

requires crews to be trained in basic firefighting, elementary first aid, survival techniques, safety, and social

responsibility. STCW also requires an understanding between the master and deck officers of bridge teamwork

procedures and, for vessels with these systems, training for automatic-radar-plotting aids and the global maritime-

distress safety system.34

 

If a defendant asserts lack of knowledge about the unseaworthiness of a vessel, records of Coast Guard inspections,

classification society surveys, or other inspections may reveal otherwise. Advances in nondestructive testing are also

useful for proving privity and knowledge. Ultrasound testing, for example, is one of the tools available to the

shipowner for determining hull-plate thickness. If a corroded hull plate fails during a soft grounding that it should

have withstood, ultrasound records can suggest how imminent the failure was and how it might have been addressed.

If a ship breaks apart, X-ray imaging of welds can reveal defects that should have been discovered through due

diligence. If a ship’s engine fails to restart during a maneuver and a collision occurs, records of previous problems

with fuel pumps or compressed air supply could negate an owner’s contention that he or she was unaware of the

problem.

 

Limitation of liability was born of a desire to encourage maritime commerce, but in many situations it has become an

anachronism—or, according to some commentators, an instrument of tort “reform.” Modern technology and vessel

management protocols have resulted in greater control and less risk to shipowners and operators. As such, insurance

carriers appear to have emerged as the true beneficiaries of limitation of liability.

Tim Akpinar is a former merchant marine officer and practices maritime law in Little Neck, New York.

End Notes

 

1. 46 U.S.C. app. §§181-196 (2000).

2. Id. §181.

3. See Susan Saulny & Mike McIntyre, Bid to Limit Ferry Liability Hits Raw Nerve, N.Y. TIMES, Dec. 4,

2003, at B3.

4. See Tom Perrotta, Report on Ferry Crash Strikes Blow to City’s Bid to Limit Civil Damages, N.Y. L.J.,

Mar. 9, 2005, at 1.

5. 46 U.S.C. app. §183(a) (2000).

6. Oceanic Steam Navigation Co. v. Mellor, 233 U.S. 718 (1914); see also Titanic, 209 F. 501, 502

(S.D.N.Y. 1913).

7. 46 U.S.C. app. §183( B) (f) (2000).

8. Sisson v. Ruby, 497 U.S. 358 (1990).

9. Id. at 362 (quoting Foremost Ins. Co. v. Richardson, 457 U.S. 668, 675 n.5 (1982)).

10. See, e.g., Keys Jet Ski, Inc. v. Kays, 893 F.2d 1225 (11th Cir. 1990).

11. 33 U.S.C. §§2703-2761 (2000).

12. 33 U.S.C. §§401-467 (2000).

13. 33 U.S.C. §§409, 411, 414-415 (2000).

14. 33 U.S.C. §§1471-1487 (2000).

15. FED. R. CIV. P., SUPP. R. FOR CERTAIN ADMIRALTY & MARITIME CLAIMS, R.F(1).

16. Id. R.F(2).

17. Id. R.F(9).

18. See 46 U.S.C. app. §185 (2000); R.F(1), supra note 15.

19. R.F(3), supra note 15.

20. 28 U.S.C. §1333 (2000).

21. See Chandris, Inc. v. Latsis, 515 U.S. 347 (1995).

22. 46 U.S.C. app. §688 (2000).

23. See In re Complaint of Ross Island Sand & Gravel, 226 F.3d 1015, 1017 (9th Cir. 2000).

24. In re Royal Caribbean Cruises, Ltd., 55 F. Supp. 2d 1367 (S.D. Fla. 1999), aff’d, 214 F.3d 1356 (11th Cir. 2000).

25. Id. at 1370.

26. Id. at 1369-72.

27. Trico Marine Assets, Inc. v. Diamond B. Marine Servs., Inc., 332 F.3d 779, 783-84 (5th Cir. 2003).

28. Id. at 790.

29. See In re Parish of Plaquemines as Owner of the M/V Pointe-A-La-Hache for Exoneration from or Limitation of

Liability, 231 F. Supp. 2d 506 (E.D. La. 2002).

30. See, e.g., U.S. Coast Guard, Cruise Ship Consumer Fact Sheet (July 1998), available at www.uscg. mil/ hq/g

-m/cruiseship.htm (last visited Jan. 4, 2006).

31. See, e.g., id.

32. International Convention for the Safety of Life at Sea (SOLAS), Nov. 1, 1974.

33. International Convention on Standards of Training, Certification, and Watchkeeping for Seafarers (STCW),

July 7, 1978; see also U.S. Coast Guard, STCW—What’s SCTW?, available at www. uscg.mil/stcw/stcw-

history.htm (last visited Jan. 4, 2006).

34. see, e.g., U.S. Coast Guard, supra note 33.

 
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DoRag

Super Anarchist
Certainly motoring under autopilot directly into a well charted rock represents gross negligence - I mean, is anyone going to argue that point?

The question of who did what is likely to be immaterial - the owner was a licensed captain, the boat was likely owned by a company, the regatta was likely entered as a charter and so the whole affair was likely a commercial endeavor and the captain is responsible regardless of who made the mistake and why the incident occurred. My guess is that an assumed risk defense gets tossed out the window based on the combination of commercial operation and gross negligence.

I'm thinking this is gonna take a lot of popcorn ...
I believe the boat was owned by the skipper, but made available to others for charter through Marina Sailing. So for the purposes of N2E 2012, it was not a charter but a private vessel operated by the owner. I don't think there's any indication that the crew were paying passengers.

I agree that it's clear that the skipper and crew contributed to the accident. Question (for the lawyers) is who else with deeper pockets might have some theoretical liability, and preferably a willingness to settle rather than litigate.

Given that the race has been run for many years and thousands (likely tens of thousands) of boats have navigated it safely it seems like it would be hard to prove gross negligence by any of the organizers.
When you point to the history of the event, remember thatb is was restricted to boats that sailed to Ensenada. In other words, a hand on a tiller. As the race entries dwindled, NOSA sought to increase attendance by expanding the cruiser classes. Then added the NASBOAT option allowing the use of motors. That enticed a whole new set of folks, arguably less experienced, to eneter the race. As NOSA knowingly enticed novices to enter the race, what duty did they have to ensure they were aware of the hazards of racing at night in heavily used commercial shipping lanes, with dark islands, hazards off Rosarita Beach, etc. What did NOSA to ensure they were competent to participate? What training and cautions did NOSA promulgate?

Everyone knows that it requires a license and passing certain tests in order to drive a car. No such requirements exits for driving a boat. NOSA understood taht and encouraged novices to go in harm's way.

No, the officers and directors of NOSA are the deep pockets in this litigation and could be held accountable.

 
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Team Subterfuge

Anarchist
720
17
San Diego
Certainly motoring under autopilot directly into a well charted rock represents gross negligence - I mean, is anyone going to argue that point?

The question of who did what is likely to be immaterial - the owner was a licensed captain, the boat was likely owned by a company, the regatta was likely entered as a charter and so the whole affair was likely a commercial endeavor and the captain is responsible regardless of who made the mistake and why the incident occurred. My guess is that an assumed risk defense gets tossed out the window based on the combination of commercial operation and gross negligence.

I'm thinking this is gonna take a lot of popcorn ...
I believe the boat was owned by the skipper, but made available to others for charter through Marina Sailing. So for the purposes of N2E 2012, it was not a charter but a private vessel operated by the owner. I don't think there's any indication that the crew were paying passengers.

I agree that it's clear that the skipper and crew contributed to the accident. Question (for the lawyers) is who else with deeper pockets might have some theoretical liability, and preferably a willingness to settle rather than litigate.

Given that the race has been run for many years and thousands (likely tens of thousands) of boats have navigated it safely it seems like it would be hard to prove gross negligence by any of the organizers.
When you point to the history of the event, remember thatb is was restricted to boats that sailed to Ensenada. In other words, a hand on a tiller. As the race entries dwindled, NOSA sought to increase attendance by expanding the cruiser classes. Then added the NASBOAT option allowing the use of motors. That enticed a whole new set of folks, arguably less experienced, to eneter the race. As NOSA knowingly enticed novices to enter the race, what duty did they have to ensure they were aware of the hazards of racing at night in heavily used commercial shipping lanes, with dark islands, hazards off Rosarita Beach, etc. What did NOSA to ensure they were competent to participate? What training and cautions did NOSA promulgate?

Everyone knows that it requires a license and passing certain tests in order to drive a car. No such requirements exits for driving a boat. NOSA understood taht and encouraged novices to go in harm's way.

No, the officers and directors of NOSA are the deep pockets in this litigation and could be held accountable.
You can add to the list of things that don't require a license:

1. Using spell check for forum posts.

2. Any requirement to do just a cursory review of a forum post before posting.

 

Delta Blues

Super Anarchist
6,212
1
Certainly motoring under autopilot directly into a well charted rock represents gross negligence - I mean, is anyone going to argue that point?

The question of who did what is likely to be immaterial - the owner was a licensed captain, the boat was likely owned by a company, the regatta was likely entered as a charter and so the whole affair was likely a commercial endeavor and the captain is responsible regardless of who made the mistake and why the incident occurred. My guess is that an assumed risk defense gets tossed out the window based on the combination of commercial operation and gross negligence.

I'm thinking this is gonna take a lot of popcorn ...
I believe the boat was owned by the skipper, but made available to others for charter through Marina Sailing. So for the purposes of N2E 2012, it was not a charter but a private vessel operated by the owner. I don't think there's any indication that the crew were paying passengers.

I agree that it's clear that the skipper and crew contributed to the accident. Question (for the lawyers) is who else with deeper pockets might have some theoretical liability, and preferably a willingness to settle rather than litigate.

Given that the race has been run for many years and thousands (likely tens of thousands) of boats have navigated it safely it seems like it would be hard to prove gross negligence by any of the organizers.
When you point to the history of the event, remember thatb is was restricted to boats that sailed to Ensenada. In other words, a hand on a tiller. As the race entries dwindled, NOSA sought to increase attendance by expanding the cruiser classes. Then added the NASBOAT option allowing the use of motors. That enticed a whole new set of folks, arguably less experienced, to eneter the race. As NOSA knowingly enticed novices to enter the race, what duty did they have to ensure they were aware of the hazards of racing at night in heavily used commercial shipping lanes, with dark islands, hazards off Rosarita Beach, etc. What did NOSA to ensure they were competent to participate? What training and cautions did NOSA promulgate?

Everyone knows that it requires a license and passing certain tests in order to drive a car. No such requirements exits for driving a boat. NOSA understood taht and encouraged novices to go in harm's way.

No, the officers and directors of NOSA are the deep pockets in this litigation and could be held accountable.
But grasshopper, in this case the owner of the vessel was a licensed USCG Captain. Much more educated than the average racer. Go around any fleet and see how many are educated by the seat of their pants vs. having taken any IRPCAS right of way classes, any seamanship courses, or hold any certifications. Yoiu'll find the vast majority of the fleet (experienced or not) have had little boating education. This guy was heads and shoulders above the rest of the fleet. Your theory makes no sense in this case.

 

Delta Blues

Super Anarchist
6,212
1
from the thread of the Mac26? that was overloaded and lives lost in DAGO

under Maritime Law any claim or liability is limited to the Value of the Ship

think that was mentioned in the Concordia cruise ship thread too

But then again:

Back to Maritime Law

http://www.mycounsel...gal_issues.html

Defeating limitation of liability

in maritime law
Dang Woody, this is the most lucid thing you have done ever. If you just started meds, stay on them! If you just fell off the meds, stay off them!

 

nolatom

Super Anarchist
3,685
701
New Orleans
Did boat's owner/skipper really hold a captain's license?

Whatever the answer to that is, limitation is difficult to establish even when all the "owners" are ashore. Almost impossible when he's on the boat, since limitation requires any negligence or rule disobedience to be outside owner's "privity or knowledge".

I'm sorry to see the legal proceedings create blood this bad between the grieving families. A little pre-filing PR by phone or letter to the Mavromatis family explaining why it was being done, and was necessary to do before claiming against insurance policy only, might have gone a long way to stop public bickering and soul-baring, and maybe even private bickering.

Grieving people don't always behave perfectly or even rationally, nor are they expected to. But usually it's done in private. I'm also sorry to see "social media" has put an end to that.

 
from the thread of the Mac26? that was overloaded and lives lost in DAGO

under Maritime Law any claim or liability is limited to the Value of the Ship

think that was mentioned in the Concordia cruise ship thread too

But then again:

Back to Maritime Law

http://www.mycounsel...gal_issues.html

Defeating limitation of liability

in maritime law
Dang Woody, this is the most lucid thing you have done ever. If you just started meds, stay on them! If you just fell off the meds, stay off them!
I'm sorry :unsure: B)

now getting the horses to actually drink the water ....................................

 
Last edited by a moderator:

MR.CLEAN

Moderator
46,889
4,887
Not here
When you point to the history of the event, remember thatb is was restricted to boats that sailed to Ensenada. In other words, a hand on a tiller. As the race entries dwindled, NOSA sought to increase attendance by expanding the cruiser classes. Then added the NASBOAT option allowing the use of motors. That enticed a whole new set of folks, arguably less experienced, to eneter the race. As NOSA knowingly enticed novices to enter the race, what duty did they have to ensure they were aware of the hazards of racing at night in heavily used commercial shipping lanes, with dark islands, hazards off Rosarita Beach, etc. What did NOSA to ensure they were competent to participate? What training and cautions did NOSA promulgate?

Everyone knows that it requires a license and passing certain tests in order to drive a car. No such requirements exits for driving a boat. NOSA understood taht and encouraged novices to go in harm's way.

No, the officers and directors of NOSA are the deep pockets in this litigation and could be held accountable.
Your skill at fitting so much bait in one post is admirable

 

nolatom

Super Anarchist
3,685
701
New Orleans
When you point to the history of the event, remember thatb is was restricted to boats that sailed to Ensenada. In other words, a hand on a tiller. As the race entries dwindled, NOSA sought to increase attendance by expanding the cruiser classes. Then added the NASBOAT option allowing the use of motors. That enticed a whole new set of folks, arguably less experienced, to eneter the race. As NOSA knowingly enticed novices to enter the race, what duty did they have to ensure they were aware of the hazards of racing at night in heavily used commercial shipping lanes, with dark islands, hazards off Rosarita Beach, etc. What did NOSA to ensure they were competent to participate? What training and cautions did NOSA promulgate?

Everyone knows that it requires a license and passing certain tests in order to drive a car. No such requirements exits for driving a boat. NOSA understood taht and encouraged novices to go in harm's way.

No, the officers and directors of NOSA are the deep pockets in this litigation and could be held accountable.
Your skill at fitting so much bait in one post is admirable
Oh yeah, he's a pro all right.

Wonder if he holds "Master of Trolling vessels, near-Coastal"

 

Delta Blues

Super Anarchist
6,212
1
Certainly motoring under autopilot directly into a well charted rock represents gross negligence - I mean, is anyone going to argue that point?

The question of who did what is likely to be immaterial - the owner was a licensed captain, the boat was likely owned by a company, the regatta was likely entered as a charter and so the whole affair was likely a commercial endeavor and the captain is responsible regardless of who made the mistake and why the incident occurred. My guess is that an assumed risk defense gets tossed out the window based on the combination of commercial operation and gross negligence.

I'm thinking this is gonna take a lot of popcorn ...
I believe the boat was owned by the skipper, but made available to others for charter through Marina Sailing. So for the purposes of N2E 2012, it was not a charter but a private vessel operated by the owner. I don't think there's any indication that the crew were paying passengers.

I agree that it's clear that the skipper and crew contributed to the accident. Question (for the lawyers) is who else with deeper pockets might have some theoretical liability, and preferably a willingness to settle rather than litigate.

Given that the race has been run for many years and thousands (likely tens of thousands) of boats have navigated it safely it seems like it would be hard to prove gross negligence by any of the organizers.
When you point to the history of the event, remember thatb is was restricted to boats that sailed to Ensenada. In other words, a hand on a tiller. As the race entries dwindled, NOSA sought to increase attendance by expanding the cruiser classes. Then added the NASBOAT option allowing the use of motors. That enticed a whole new set of folks, arguably less experienced, to eneter the race. As NOSA knowingly enticed novices to enter the race, what duty did they have to ensure they were aware of the hazards of racing at night in heavily used commercial shipping lanes, with dark islands, hazards off Rosarita Beach, etc. What did NOSA to ensure they were competent to participate? What training and cautions did NOSA promulgate?

Everyone knows that it requires a license and passing certain tests in order to drive a car. No such requirements exits for driving a boat. NOSA understood taht and encouraged novices to go in harm's way.

No, the officers and directors of NOSA are the deep pockets in this litigation and could be held accountable.
Come to think of it:

I don't know of any sailboat racing event in the U.S. that requires any "skills test."

I'm not familiar with any USCG Regulation or State Regulation that requires any "skills test" or "licensing" (for adults) for operating a pleasure (non-commercial) sailboat.

While the USCG and NASBLA would wish to grow their government bureaucracies with a suggestion like yours, The People have been fighting and resisting this government intrusion for decades.

Do you have a dog in this fight?

 
Certainly motoring under autopilot directly into a well charted rock represents gross negligence - I mean, is anyone going to argue that point?

The question of who did what is likely to be immaterial - the owner was a licensed captain, the boat was likely owned by a company, the regatta was likely entered as a charter and so the whole affair was likely a commercial endeavor and the captain is responsible regardless of who made the mistake and why the incident occurred. My guess is that an assumed risk defense gets tossed out the window based on the combination of commercial operation and gross negligence.

I'm thinking this is gonna take a lot of popcorn ...
I believe the boat was owned by the skipper, but made available to others for charter through Marina Sailing. So for the purposes of N2E 2012, it was not a charter but a private vessel operated by the owner. I don't think there's any indication that the crew were paying passengers.

I agree that it's clear that the skipper and crew contributed to the accident. Question (for the lawyers) is who else with deeper pockets might have some theoretical liability, and preferably a willingness to settle rather than litigate.

Given that the race has been run for many years and thousands (likely tens of thousands) of boats have navigated it safely it seems like it would be hard to prove gross negligence by any of the organizers.
When you point to the history of the event, remember thatb is was restricted to boats that sailed to Ensenada. In other words, a hand on a tiller. As the race entries dwindled, NOSA sought to increase attendance by expanding the cruiser classes. Then added the NASBOAT option allowing the use of motors. That enticed a whole new set of folks, arguably less experienced, to eneter the race. As NOSA knowingly enticed novices to enter the race, what duty did they have to ensure they were aware of the hazards of racing at night in heavily used commercial shipping lanes, with dark islands, hazards off Rosarita Beach, etc. What did NOSA to ensure they were competent to participate? What training and cautions did NOSA promulgate?

Everyone knows that it requires a license and passing certain tests in order to drive a car. No such requirements exits for driving a boat. NOSA understood taht and encouraged novices to go in harm's way.

No, the officers and directors of NOSA are the deep pockets in this litigation and could be held accountable.
Come to think of it:

I don't know of any sailboat racing event in the U.S. that requires any "skills test."

I'm not familiar with any USCG Regulation or State Regulation that requires any "skills test" or "licensing" (for adults) for operating a pleasure (non-commercial) sailboat.

While the USCG and NASBLA would wish to grow their government bureaucracies with a suggestion like yours, The People have been fighting and resisting this government intrusion for decades.

Do you have a dog in this fight?
Membership in a bona fide yacht club used to help cover who could race in the past.

In New Jersey now you need a boat class, test and annual license to operate anything on the water with a motor.

 




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