Recreational boating accidents: Which law applies?

First priority is determining whether federal maritime law or state tort law controls.

The recreational boating and personal watercraft (PWC) industries are booming. Never before have water-based recreational activities been so popular. Each summer weekend across America, ponds, lakes, rivers, harbors, and seas teem with recreational boaters, water and PWC skiers, sailors, and swimmers.

If undertaken with proper regard for safety, these activities provide great enjoyment. Regrettably, safety is often neglected. According to the U.S. Coast Guard, in 1999--the last year for which statistics are available--7,913 recreational boating accidents were reported, resulting in 4,315 injuries and 734 deaths.(1) Nearly 70 percent of these accidents involved "operator-controllable factors" such as operator inattention, operator inexperience, careless or reckless operation, excessive speed, or improper lookout.(2)

When a person who has been injured in a recreational boating accident calls with a potential case, an attorney must consider the same issues of negligence, causation, and damages that are involved in all personal injury cases. To do so in proper context, the attorney must first determine which will control the case, federal maritime law or state tort law.

The answer may govern, among other things, the available forums, the plaintiff's right to a jury trial, the recoverable damages, the applicable comparative/contributory negligence law, and the defendant's potential right to limit its liability. If the plaintiff is a "seaman," the answer may also decide whether the strict liability warranty of seaworthiness, the protections of the Jones Act, and the remedy of maintenance and cure are available.

Admiralty jurisdiction

To fall within federal admiralty jurisdiction and the general maritime law, a tort must meet a "locality" test and a two-prong "nexus" test. While providing no bright lines, these tests should enable practitioners to determine, in most cases, whether a case will "sound in admiralty."

The locality test requires that a tort occur on "navigable" waters. To be navigable for purposes of admiralty jurisdiction, a waterway must be usable as a highway for interstate commerce.(3) Ongoing or potential intrastate commerce does not confer admiralty jurisdiction.(4)

Accordingly, one-state waterways that connect to neither the open sea nor an interstate waterway are not navigable, nor are those that are usable only for recreational interstate travel.

In practice, this means that open seas and waterways actually used for interstate commerce are navigable as a matter of law. Whether other waterways are navigable for purposes of admiralty jurisdiction--that is, whether the waterway could be used for interstate commerce--is a question of fact.(5) If an accident did not occur on navigable waters as defined here, state law will control.

For accidents that do occur on navigable waters, federal admiralty jurisdiction will exist and general maritime law will control if the activities underlying the event have a sufficient nexus with traditional maritime activities. To meet the two-prong nexus requirement, the incident must have posed a "potential hazard to maritime commerce" and arisen "out of activity that bears a substantial relationship to traditional maritime activity."(6)

To satisfy the first prong, an event need not have actually disrupted maritime commerce. It is enough if the accident or event had the potential to do so. Because all that is needed is potential disruption, few maritime accidents will fail to satisfy this requirement. Events that might have resulted in rescue or salvage operations; that might have left debris, pollution, or damaged vessels in the water; or that in any other way might have impeded the passage of commercial vessels, would all have the potential to disrupt maritime commerce.

The second prong of the nexus test--requiring that a tort arise "out of an activity that bears a substantial relationship to traditional maritime activity"--rules out few, if any, boating accidents. Because the U.S. Supreme Court has held that a boat docked for storage and maintenance was engaged in traditional maritime activity,(7) "it is difficult to conceive of anything that a boat could do in the water which would not qualify as a traditional maritime activity."(8) Most accidents involving PWC are also likely to be deemed to have a sufficient nexus with traditional maritime activity to fall within admiralty jurisdiction.(9)

Courts have greater difficulty determining whether the required nexus exists in cases involving swimming and diving,(10) scuba diving,(11) snorkeling, waterskiing, and parasailing.(12) Jurisdiction in these cases will turn on the particular facts, the court's interpretation of what constitutes "traditional maritime activity," and its characterization of the activity that gave rise to the tort. Allegations of operational error or a connection to an ongoing commercial maritime enterprise--such as a cruise ship, charter boat, or rental agency--should increase the likelihood that the court will find a sufficient link to traditional maritime activity.(13)

State law supplements maritime law

Where there is admiralty jurisdiction, federal maritime law controls, and the U.S. district courts have jurisdiction. However, maritime law does not preempt all state law, nor does federal jurisdiction preclude concurrent state jurisdiction.

If state law does not conflict with martime law or "interfere with the uniform working of the maritime legal system," local state law may supplement maritime law.(14) This is particularly important in wrongful death actions based on incidents occurring in state territorial waters, as discussed below.

The Constitution grants federal jurisdiction "to all Cases of admiralty and maritime Jurisdiction," but it is not exclusive.(15) Under the "savings to suitors" clause of 28 U.S.C. [sections] 1333, state courts have concurrent jurisdiction and may hear actions controlled by federal maritime law. Under the "savings to suitors" clause, any maritime claim--other than in rem claims against a vessel and those based on federal statutes granting exclusive jurisdiction to federal courts--may be pursued in state court. One reason for filing a maritime case in state court is to create the right to a jury trial, which does not always exist in admiralty. In fact, without a Jones Act claim, cases brought in federal court based solely on the maritime nature of the claim will not be tried before a jury. The Jones Act, which allows "seamen" to sue their employers for damages arising out of injuries caused by the employers' negligence, grants the right to a jury trial--a right otherwise not found in admiralty.(16)

However, the right to a jury trial can be created in a maritime case filed in federal court by pleading federal-question or diversity jurisdiction. If neither applies, the right can still be created by filing in state court under the "savings to suitors" clause.(17)

Seaman status

The special protections afforded seamen--including the right to bring claims for Jones Act negligence, breach of the warranty of seaworthiness, and maintenance and cure--are based on the recognition that those who "work" at sea endure special hardships and encounter unique perils. Under certain circumstances, recreational boaters or sailors may be deemed seamen entitled to these special protections.

In Chandris v. Latsis, the U.S. Supreme Court held that to be a seaman, an injured party must be an "employee" whose "duties ... contribut[e] to the function of the vessel or to the accomplishment of its mission" and whose "connection to a vessel in navigation ... is substantial in terms of both its duration and its nature."(18) Since that decision, the Second Circuit has held that those who do not earn their living at sea do not qualify as seamen for Jones Act coverage.(19)

The Ninth Circuit, however--noting that at common law, compensation is only one factor in determining employment status--has held that a jury should determine whether an unpaid volunteer injured on a 10-day nautical outing with a troop of Boy Scouts was a seaman.(20)

Accordingly, except in the Second Circuit, an attorney can argue that unpaid crew members who both contribute to the function of a vessel and have a substantial connection to it may be seamen.(21) Any person aiding in the navigation of a vessel, trimming sails, handling lines, or performing other work aboard a vessel will probably be deemed to be contributing to its function. What constitutes a "substantial connection" to a vessel is less clear. Such a determination is highly fact-specific, and no rule or standard will apply to all cases.

A seaman may recover against his or her employer under the Jones Act whenever negligence plays any part, however slight, in causing injury. The burden of proof on the issue of causation has been described as "featherweight."(22) This lenient standard may significantly improve a plaintiff's chance for recovery.

Even more favorable to seamen plaintiffs is the strict liability warranty of seaworthiness. This warranty imposes on vessel owners an absolute and nondelegable duty to provide a vessel, equipment, and appurtenances that are "reasonably fit for their intended use."(23)

Inadequate or incompetent crew, defective equipment, or even transitory unsafe conditions can render a vessel unseaworthy. Should an unseaworthy condition cause injury to a seaman, the vessel owner will be liable regardless of whether he or she knew, or even had reason to know, of its existence. However, a vessel owner without actual or presumed knowledge of an unseaworthy condition may limit the extent of his or her liability pursuant to the Limitation of Shipowner's Liability Act, as discussed below.

Finally, seamen are entitled to maintenance and cure. Maintenance is "the right of a seaman to food and lodging if he falls ill or becomes injured while in the service of a ship."(24) Cure is "the right to necessary medical services."(25) Any seaman injured in the service of a ship is entitled to maintenance and cure, regardless of whether the ship owner was to blame for the injury.

Wrongful death actions

The law applicable to marine-related wrongful death actions depends on the status of the decedent and the location of his or her death. As in injury cases, the remedies available depend on whether or not the person who died was a seaman.

Deaths occurring more than three nautical miles offshore fall under the Death on the High Seas Act (DOHSA).(26) Recovery under DOHSA for maritime fatalities is limited to pecuniary damages, such as funeral expenses and loss of support, services, nurture, guidance, care, instruction, and inheritance. Damages for loss of society or consortium, or the grief, bereavement, or mental anguish of dependents are not recoverable. Nor does DOHSA permit recovery of survival action damages for pre-death injuries.(27)

The dependents of nonseamen killed in state territorial waters may bring a wrongful death action under general maritime law seeking damages for pecuniary and nonpecuniary losses.(28) Although damages for pain and suffering before death are not compensable under general maritime law, the U.S. Supreme Court held in Yamaha Motor Corp., U.S.A. v. Calhoun that the damages available for the Jet Ski death of a decedent killed in state territorial waters were properly governed by state law.(29) Accordingly, the dependents of a nonseaman killed in state territorial waters may seek "state law statutory wrongful death and survival remedies ... as long as they are not in conflict with the general maritime law."(30)

The personal representative of a deceased seaman may bring an action under the Jones Act and/or general maritime law wherever the fatality occurred. Unlike DOHSA, the Jones Act permits recovery for the decedent's pain and suffering and medical costs, in addition to recovery for the pecuniary losses suffered by the decedent's beneficiaries, and grants the right to a jury trial.

Liability limits

The defense of assumption of risk is not available in maritime law, nor does the plaintiff's contributory negligence bar recovery. The doctrine of pure comparative negligence applies. However, defendants can seek to limit or avoid liability under the unique protections of the Limitation of Vessel Owner's Liability Act.(31)

This statute provides that vessel owners may limit their liability to the value of their vessel after the incident if the negligence or unseaworthy condition causing injury or death occurred without their privity or knowledge.(32) Privity has commonly been held to mean "some personal participation of the owner in the fault or negligence which caused or contributed to the loss or injury."(33) Knowledge has been defined as "some personal cognizance which the owner possesses [or ought to possess] of those conditions which caused or contributed to the incident."(34) The owner bears the burden of proving a lack of privity or knowledge. This burden is more difficult to meet, in most cases, if the owner is at the helm or aboard the vessel at the time of the incident. However, the presence of the vessel owner will not necessarily defeat limitation, nor will his or her absence ensure it. Limitation of liability is frequently denied where the owner failed to properly maintain or inspect the vessel or its equipment, provide proper safety equipment, or properly train the crew.(35)

Negligent entrustment can also be grounds for defeating limitation. A vessel owner who entrusts his or her vessel to a person whom he or she knows, or should know, is inexperienced or incompetent to operate it safely is not entitled to limitation.(36)

Most courts have held that the Limitation Act applies only where admiralty jurisdiction exists, although some have held it to be an independent source of jurisdiction.(37) Although some district courts have held otherwise, "most courts have concluded that Congress intended the Limitation Act to apply to pleasure craft as well as vessels used for commercial purposes."(38)

A vessel owner seeking to limit his or her liability has only six months from receiving notice of a claim to file a complaint for limitation.(39) Because this provision has been strictly enforced,(40) plaintiff attorneys should provide written notice of a claim as soon as possible in cases where limitation may be sought.

Attorneys representing people injured in recreational boating accidents confront numerous difficult issues relating to the interplay of federal maritime law and state tort law. Because the differences between the two are often significant and sometimes determine the outcome, attorneys must first ascertain which law applies. The answer will enable an attorney to evaluate the case properly and devise a winning strategy.

Notes

(1.) U.S. DEP'T OF TRANSPORTATION, U.S. COAST GUARD, BOATING STATISTICS--1999, at 4 (2000) (Commandant Pub. No. P16754.13), available at www.uscgboating.org/saf/pdf/Boating_Statistics_1999.pdf (visited June 9, 2001).

(2.) Id. at 5.

(3.) The Daniel Ball, 77 U.S. 557 (1870). See generally 1 THOMAS J. SCHOENBAUM, ADMIRALTY AND MARITIME LAW [sections] 3-3, at 72-79 (3d ed. 2001).

(4.) See, e.g., Alford v. Appalachian Power Co., 951 F.2d 30 (4th Cir. 1991); Three Buoys Houseboat Vacations U.S.A. Ltd. v. Morts, 921 F.2d 775 (8th Cir. 1990).

(5.) SCHOENBAUM, supra note 3, at 74, n.13. See, e.g., In re Bernstein, 81 F. Supp. 2d 176, 178-79 (D. Mass. 1999).

(6.) Sisson v. Ruby, 497 U.S. 358, 362 (1990); Foremost Ins. Co. v. Richardson, 457 U.S. 668, 675 n. 5.

(7.) See, e.g., Sisson, 497 U.S. 358, 363-64.

(8.) Warren J. Marwedel, Admiralty Jurisdiction and Recreational Craft Personal Injury Issues, 68 TUL. L. REV. 423, 434 (1994).

(9.) See, e.g., Yamaha Motor Corp., U.S.A. v. Calhoun, 516 U.S. 199 (1996); Wahlstrom v. Kawasaki Heavy Indus., 4 F.3d 1084 (2d Cir. 1993); see also Krummel v. Bombardier Corp., 206 F.3d 548 (5th Cir.), reh'g en banc denied, 218 F.3d 745 (5th Cir. 2000).

(10.) Compare Wright v. United States, 883 F. Supp. 66, 67 (D.S.C. 1994) (holding that claim of injury from diving off a pontoon boat falls within admiralty jurisdiction) and Matthews v. Howell, 753 A.2d 69 (Md. 2000) (holding that maritime law applies where boat passenger drowned after jumping or filling into water), with Delta Country Ventures, Inc. v. Magana, 986 F.2d 1260 (9th Cir. 1993) (diving off houseboat lacks a substantial relationship to traditional maritime activity) and Woltering v. Outboard Marine Corp., 615 N.E.2d 86 (Ill. App. Ct. 1993) (holding that state law controlled claims for damages for death of passenger thrown from pleasure boat), cert. denied, 513 U.S. 1198 (1995).

(11.) Compare Shultz v. Florida Keys Dive Ctr., Inc., 224 F.3d 1269 (11th Cir. 2000) (refusing to disturb district court's conclusion that admiralty jurisdiction existed in scuba diving accident case); In re Pacific Adventures, Inc., 5 F. Supp.2d 874 (D. Haw. 1998) (holding that scuba diver's personal injury claims fall within admiralty jurisdiction); and McClenahan v. Paradise Cruises, Ltd., 888 F. Supp. 120 (D. Haw. 1995) (holding that "snuba" diving accident had substantial relationship to traditional maritime activity), with Duplechin v. Prof'l Ass'n for Diving Instructors, 666 F. Supp. 84 (E.D. La. 1987) (holding that scuba diving does not constitute traditional maritime activity). See also Robert K. Jenner, Diving into Scuba Litigation, on page 18 of this issue.

(12.) Compare Beiswenger Enters. Corp. v. Carletta, 779 F. Supp. 160 (M.D. Fla. 1991) (holding that parasailing injury claims fall outside of maritime jurisdiction), with In re Skyrider, 1991 A.M.C. 1956 (D. Haw. 1990) (holding that parasailing activities fall within admiralty jurisdiction).

(13.) See Matthew P. Harrington, Almost Full Circle: Admiralty Jurisdiction over Pleasure Craft, 24 J. MAR. L. & COM. 453, 505 (1993).

(14.) Pacific Merchant Shipping Ass'n v. Aubry, 918 F.2d 1409, 1422 (9th Cir. 1990).

(15.) U.S. CONST. art. III, [sections] 2, Cl. 1.

(16.) 46 U.S.C. app. [sections] 688(a) (2000).

(17.) 28 U.S.C. [sections] 1333 (2000).

(18.) Chandris, Inc. v. Latsis, 515 U.S. 347, 368 (1995).

(19.) Fisher v. Nichols, 81 F.3d 319, 322 (2d Cir. 1996); see also Naglieri v. Bay, 977 F. Supp. 131 (D. Conn. 1997).

(20.) Boy Scouts of Am. v. Graham, 86 F.3d 861 (9th Cir. 1996).

(21.) Pre-Chandris cases discussing seaman status of unpaid crew include Gorgas v. Williams, 1976 A.M.C. 2387, 2396-97 (D.N.J. 1976), aff'd, 568 F.2d 768 (3d Cir. 1978); In re Read, 224 F. Supp. 241 (S.D. Fla. 1963); and Heath v. Am. Sail Training Ass'n, 644 F. Supp. 1459 (D.R.I. 1986).

(22.) Robert Force, Post-Calhoun Remedies for Death and Injury in Maritime Cases: Uniformity, Whither Goest Thou? 21 TUL. MAR. L. J. 7, 12 (1996).

(23.) Mitchell v. Trawler Racer, Inc., 362 U.S. 539, 550 (1960).

(24.) SCHOENBAUM, supra note 3, at 359.

(25.) Id.

(26.) 46 U.S.C. app. [subsections] 761-767 (2000).

(27.) SCHOENBAUM, supra note 3, at 484-85.

(28.) See, e.g., Norfolk Shipbldg. & Drydock Corp. v. Garris, No. 00-346, 2001 WL 589090 (U.S. June 4, 2001); Sea-land Servs., Inc. v. Gaudet, 414 U.S. 573, reh'g denied, 415 U.S. 986 (1974); Moragne v. States Marine Lines, Inc., 398 U.S. 375 (1970).

(29.) Yamaha Motor Corp., 516 U.S. 199, 206, 216.

(30.) SCHOENBAUM, supra note 3, at 490.

(31.) 46 U.S.C. app. [subsections] 181-196 (2000).

(32.) 46 U.S.C. app. [sections] 183 (2000).

(33.) Lewis Herman, Limitation of Liability for Pleasure Craft, 14 J. MAR. L. & COM. 436 (1983).

(34.) Id. at 437.

(35.) 2 THOMAS J. SCHOENBAUM, ADMIRALTY AND MARITIME LAW 346-47 (3d ed. 2001).

(36.) See, e.g., In re Guglielmo, 897 F.2d 58 (2d Cir. 1990); In re Theisen, 349 F. Supp. 737 (E.D.N.Y 1972).

(37.) For a discussion of these cases, see In re Bernstein, 81 F. Supp. 2d 176 (D. Mass. 1999), and Seven Resorts, Inc. v. Cantlen, 57 F.3d 771 (9th Cir. 1995).

(38.) SCHOENBAUM, supra note 34, at 333; see, e.g., In re Bay Runner Rentals, Inc., 113 F. Supp. 2d 795 (D. Md. 2000); In re Royal Carribean Cruises, Ltd., 55 F. Supp. 2d 1367, 1369 (S.D. Fla. 1999), aff'd, 214 F.3d 1356 (11th Cir. 2000). But see Estate of Lewis, 683 F. Supp. 217 (N.D. Cal. 1987); In re Lowing, 635 F. Supp. 520 (W.D. Mich. 1986); and In re Tracey, 608 F. Supp. 263 (D. Mass. 1985).

(39.) 46 U.S.C. app. [sections] 185 (2000).

(40.) See In re Beesley's Point Sea-Doo, Inc., 956 F. Supp. 538 (D.N.J. 1997); In re Southcoast Watersport Rentals, Inc., 954 F. Supp. 260 (S.D. Fla. 1996).

Prepare your recreational boating case using documents available from, the ATLA Exchange

The documents listed below and many others pertaining to recreational boating litigation are available from the ATLA Exchange. For more information, visit exchange.atla.org, phone [phone], or fax to [phone].

Becker v. U.S. Marine Co. The parties' appellate briefs in a case holding that the Federal Boat Safety Act does not preempt state law design-defect claims where the U.S. Coast Guard has not adopted a nonregulation policy. (No. LR3162.)

Brabander v. Mastronardi. The plaintiffs' amended complaint and opposition to the defendants' motion to dismiss, the defendants' summary judgment motions and the plaintiffs' response, and the jury instructions in a case alleging operation of a boat at an unsafe speed and while intoxicated. (No. LR3211.)

Brawford v. B&J Fiberglass. The plaintiffs mediation brief and expert reports in a case alleging negligent ski boat repair. (No. LR2300.)

Hydeman v. Rubin. The plaintiffs interrogatories and trial notebook, including complaint, answer, motion in limine, jury instructions, verdict form, deposition summaries, and expert witness reports and curricula vitae. The case alleged failure to warn against sitting in the bow of a pleasure boat and negligent operation of a boat at a high speed into the wake of a larger vessel. (No. LR2212.)

Lawson v. Ministar, Inc. The plaintiffs' brief and motions in limine in a case alleging failure to protect structures that surrounded the cuddy cabin of a pleasure boat. (No. LR2638.)

Ling v. W.T.Y.S. 4, Inc. The plaintiff's complaint and memorandum of law in a case alleging defective manufacture of a boat's carbon monoxide detector. (No. LR3138.)

Marischen v. Nelson Marine Motor Service, Inc. The plaintiffs trial brief and the court's opinions denying the defendants' summary judgment motions and granting the plaintiff partial summary judgment on assumption of the risk. The case alleged negligent operation of a boat. (No. LR2022.)

Moore v. Brunswick Bowling & Billiards Corp. The plaintiff's application for a writ of error in a case holding that the Federal Boat Safety Act does not preempt state claims alleging failure to guard propellers. (No. LR2142.)

Peralta v. Guinn. The plaintiff's trial brief in a case alleging that a boat driver failed to maintain a proper lookout. (No. LR3306.)

Powers v. Bayliner Marine Corp. The plaintiffs' trial and evidentiary briefs in a case holding that survivors of a nonseaman killed in a recreational boating accident on territorial waters can recover nonpecuniary damages. (No. LR2358.)

Rome v. Mid-Island Marina, Inc. The plaintiff's complaint and the parties' motions for and against summary judgment in a case alleging that a marina negligently hired--and entrusted a boat to--a dockmaster. (No. LR2364.)

Stanley v. Bertram-Trojan, Inc. The plaintiff's letter brief in a case holding that the Federal Boat Safety Act does not preempt a claim alleging negligent design of a boat hatch. (No. LR2188.)

Taylor v. South Florida Water Management District. The plaintiff's amended complaint in a case alleging that a water management district had maintained an unsafe waterway. The plaintiff claimed that a bridge was not the required height above water, resulting in injury to a boat passenger. (No. LR2495.) L294 1MMA 

Kevin Donius practices with Bagley & Bagley in Boston. He can be reached at [e-mail].