Skimming the surface of safety: the personal watercraft industry has done as little as possible to address well-known hazards of these popular vessels, and the government is steering a slow course to regulation.

Memorial Day weekend is meant to be a time to remember those who died while serving our nation. But for a mother named Cindy, that weekend marks a time to remember the death of her son, Scott. He did not die at war. Rather, Scott died in the middle of a Texas lake at the age of 16.

On Memorial Day weekend 2003, Scott and three of his friends borrowed four Sea-Doo personal watercraft (PWC) to ride around the lake, celebrating the end of the school year. It was only a matter of minutes before his friend Corey headed his Sea-Doo toward Scott, who was sitting on his idle craft. Corey instinctively released the throttle to slow the vessel and then attempted to turn away. But Corey's Sea-Doo would not turn or appropriately slow down, and it struck and fatally injured Scott.

Unfortunately, this accident is not unusual. And while the PWC industry would have the public believe that these small vessels are no more dangerous than other recreational watercraft, in reality PWC operators are injured 8.5 times as often as those operating other motorized watercraft. (1) Despite these staggering statistics, the industry remains poorly regulated, and manufacturers continue to stall any serious progress in improving PWC design.

PWCs are the only recreational water-craft associated with a leading cause of death in recreational boating accidents other than drowning. (2) In 2004, only 25 percent of PWC fatalities were due to drowning; all other deaths were the result of other injuries, (3) many caused by an off-throttle steering (OTS) hazard. Many PWC users die because of injuries caused by blunt force trauma, typically involving a collision with another vessel, a floating object, or a swimmer. (4)

One of the most serious PWC dangers is the possibility of steering loss when either the throttle is released or the vessel is in an off-power position. The PWC design requires the operator to react in a way that is contrary to human nature. When facing an imminent collision, an operator's natural instinct--especially if he or she is a novice--is to release the throttle in order to reduce speed, and then alter course, instead of engaging the throttle and turning. But these distinctive vessels--with a movable water jet, no rudder to control steering, and no brakes--do not respond the way many operators expect. (5) Counterintuitively, once the throttle is released, the operator loses the ability to control the vessel.

The popularity of PWCs--what most people know as Jet Skis, Sea-Doos, and WaveRunners--has skyrocketed over the past two decades. At the end of 2004, the National Marine Manufacturers Association estimated that nearly 1.5 million PWCs were in use in the United States. (6)

This should come as no surprise in light of PWC manufacturers' marketing, which depicts riders wake:jumping, turning sharply, and operating the vessels close to one another at high speeds. The four major manufacturers still making PWCs--Bombardier (Sea-Doo), Kawasaki (Jet Ski), Honda (AquaTrax), and Yamaha (WaveRunner)--target thrill-seekers looking to have a good time on the water. (7) While highly skilled drivers may expertly whip their watercrafts around each other in promotional advertisements, such maneuvers--and others much less daring--have seriously injured and killed operators for the past 20 years.

Inadequate government response

The dangerous nature of PWCs is not news to the industry or federal regulatory agencies. In a 1998 study, the National Transportation Safety Board (NTSB) found that although PWCs constituted merely 7.4 percent of all recreational boats in 1998, an astonishing 51 percent of all reported boating accidents and 41 percent of all boating injuries involved PWCs. The study found a "high risk of injury associated with PWC operations" (8) and noted that a significant number of PWC accidents involve operator error and inexperience. Almost one-third of all operators involved in collisions had used a PWC fewer than 10 times before the accident. (9) Moreover, the NTSB found that close to one-fourth of PWC accidents are linked to the hazards of steering loss in off-throttle and off-power situations. (10)

These results prompted the NTSB to issue recommendations to PWC manufacturers, the U.S. Coast Guard, and the states. In response, more than half the states have enacted legislation or taken other actions consistent with NTSB recommendations to improve operator knowledge. (11) Most states now mandate personal flotation device use, boater education courses, and safety instruction at PWC rental operations.

Unfortunately, the industry and the U.S. Coast Guard, which issues safety regulations for recreational watercraft, have been less responsive. The NTSB recommended that the industry take the following steps:

    Evaluate personal watercraft designs and
    make changes to improve operator control
    and help prevent personal injuries. Consider
    items such as off-throttle steering,
    braking, and padded handlebars, and operator
    equipment such as personal flotation
    devices and helmets.

      Develop, with the U.S. Coast Guard, comprehensive
   standards that are specific to
   the safety risks of personal watercraft....

      Determine within two years, through research,
   the feasibility of providing personal
   watercraft operators more control in an
   off-throttle steering situation. (12)

Shortly after the NTSB study was published, the agency directed the Personal Watercraft Industry Association to work with the Coast Guard and use the study's results to develop appropriate steering standards for jet-pump propelled vessels. (13) After eight years, the Coast Guard has done virtually nothing to eradicate PWC steering hazards--due in large part to PWC industry influence.

The Coast Guard initially responded to the NTSB recommendations by contracting for testing with the Society of Automotive Engineers (SAE), a professional organization and standards body for the engineering of powered vehicles of all kinds, including cars, trucks, boats, and aircraft. (14) Once it discovered that the SAE used two consulting agencies--Breen Associates and Design Research Engineering--with engineers who had previously testified on behalf of the industry as expert witnesses at trial, the Coast Guard quickly distanced itself from the study. (15) In fact, at the same time as the Breen director was evaluating OTS systems for the SAE, he was testifying on behalf of Kawasaki in a PWC steering-loss case. (16)

Not surprisingly, the consultants claimed that the NTSB investigation was questionable at best because it did not give sufficient deference to other relevant factors in PWC accidents, such as alcohol, speed, rider experience, environment, and vessel type--an argument completely lacking merit given the NTSB study's recognition of operator error. (17) The Coast Guard has never released conclusions from the SAE study, known as the Breen report, and formally announced that it could not stand behind findings authored by the PWC industry's paid experts. (18)

In an effort to get an unbiased report, the Coast Guard issued a grant to Underwriters Laboratories (UL) to test OTS systems and develop a standard for off-throttle steering of jet-pump propelled craft. (19) Realizing that PWC operators lose directional control for reasons other than off-throttle steering, UL broadened the scope of its work to encompass collision-avoidance capabilities in general. Its investigation included both off-throttle and off-power (or lost-thrust) testing. (20) Underwriters Laboratories tested not only designs that the PWC industry was beginning to implement, but also aftermarket designs that could be retrofitted to PWCs already in use. (21)

Underwriters Laboratories compiled its findings and created a draft standard, which proposed that an OTS system should be able to deflect a PWC traveling at maximum speed (typically 55 mph to 60 mph) that is suddenly thrown into an off-power or off-throttle condition at 65 feet from an object in the water. (22) However, rather than backing the UL standard, the Coast Guard punted the project back to the industry by appointing the SAE Personal Watercraft Subcommittee to essentially develop a standard to regulate itself.

Inadequate Industry response

Not surprisingly, the industry moved slowly. It wasn't until 2003--13 years after safer designs were feasible and 5 years after the NTSB's recommendations--that the SAE developed a "recommended practice." It issued Standard J2608, entitled "Off-Throttle Steering Capabilities of Personal Watercraft," which was not to be implemented until the 2006 model year. (23)

Standard J2608 attempts to define the test conditions, procedures, and performance requirements for evaluating off-throttle steering capabilities of personal watercraft. (24) Notably, J2608 was authored by the PWC subcommittee, which was chaired by an employee of Bombardier and included representatives from all five manufacturers.

The standard is a significantly weaker version of the one proposed by UL, and it is plagued by a long list of deficiencies. First, J2608 is voluntary--no manufacturer is required to conform to its recommendations. The standard merely explains how to test and measure a PWC's off-throttle steering capabilities, should a manufacturer choose to conduct such an evaluation.

Even worse, Standard J2608 does not require recalls of the millions of PWCs already in use and lacking off-throttle and off-power steering. Given that aftermarket designs for these steering mechanisms have been available for over a decade, this omission is especially outrageous. (25)

Most important, J2608 lacks substance and credibility. This is obvious when you compare it to the proposed UL standard:

* The SAE standard is lax enough to cover most accidents or accident reconstruction scenarios. In other words, J2608 provides that a PWC should be capable of steering away from an object in an off-throttle situation within an allotted distance. But the prescribed distance is so great that a manufacturer can argue that because an accident occurred within a shorter distance than the standard, such a situation is tougher than the standard, and thus the standard was not violated.

* Unlike the UL standard, J2608 addresses only off-throttle steering, ignoring the serious steering problems in off-power situations.

* The UL standard differentiated between novice, intermediate, and advanced operators to evaluate whether operator experience affects the craft's performance. (26) The SAE excluded novice operators from J2608, even though they are the most likely to be involved in an off-throttle accident. PWCs need only meet the SAE standard with experienced operators--those who need safe steering capabilities the least.

The J2608 distance specification is excessive and significantly longer than that proposed by UL. The SAE-recommended distance compared with the total coasting distance of a PWC reveals the excessiveness. A typical PWC will coast to a stop from 50 mph in 260 feet. J2608 specifies a distance of 184 feet from throttle release to baseline at 50 mph. That distance is so great that many PWCs would meet J2608, even without off-throttle steering.

Safer designs exist

The engineering community has long known that quick collision avoidance is associated with releasing the throttle, trying to brake or turn. (27) Despite this, PWC manufacturers have argued that loss of steering is inherent in any jet-pump design and that operators are to blame for improper use. Although the manufacturers have long been aware that PWC design is contrary to human instinct--drivers habitually make the mistake of releasing the throttle and then trying to turn--the industry continues to blame operators for misuse instead of changing PWC design to account for this behavior.

Simple and inexpensive alternative designs that give the operator greater steering capabilities and thus more safety have been available to the industry since 1990. (28) Yet it is only in the last few years PWC manufacturers have slowly incorporated OTS designs into their new watercraft.

It was not until 2001 that Kawasaki introduced its Smart Steering (KSS) system. KSS features a steering sensor electronically linked to an onboard microprocessor. (29) The sensor interprets any attempt by an operator to power down and turn hard at the same time (as a panic-induced mistake) and overrides the throttle so the craft does not lose power and directional control. Kawasaki has four Jet Skis on the market in its 2006 model line, and all but one are equipped with KSS.

In 2003, Yamaha and Honda introduced their throttle reapplication systems. (30) Yamaha WaveRunners are equipped with the Yamaha Engine Management System (Y.E.M.S.), which includes off-throttle steering. Its OTS function activates when the operator releases the throttle lever and attempts to steer the watercraft, and it helps the operator turn while decelerating. (31) All but one of Yamaha's WaveRunners are equipped with Y.E.M.S.

Honda implemented an electronic control unit in its OTS system that is featured in the complete 2006 AquaTrax line. In addition to the OTS system, Honda has installed the Limit Mode program on the AquaTrax, which provides a lower top-speed setting for beginners, borrowers, and rental users. (32)

In 2002, Bombardier introduced its rudder steering system, called Off-Power Assisted Steering (O.EA.S.), in select Sea-Doo models. (33) The system consists of a pair of rudders, or side vanes, normally folded up against the body of the craft that drop down below the hull whenever pressure in the jet pump drops. Linked to the steering system, the rudders turn with the handlebars.

Bombardier has phased in an additional safety device to improve operator control in every 2006 model of its watercraft. Sea-Doos are now equipped with both the O.P.A.S. system and the Sea-Doo Learning Key, a speed-restriction device that prevents the PWC from reaching speeds above 35 mph, allowing the operator more time to react to sudden and unexpected hazards. (34)

Although manufacturers have implemented the designs discussed above on most of their new models, they did not issue any postsale warnings about the problems of off-throttle or off-power steering loss, nor did they recall and retrofit the defective crafts currently filling waterways all over the country. Designs to retrofit PWCs have been available to manufacturers since the early 1990s. (35)

For example, WaveTrax, a "patented dual-rudder steering system specifically designed for PWC[s] ... was originally invented in 1991 as an aftermarket ... product to be easily retrofitted onto existing PWC [s] at a low cost." (36) Essentially, with rudder systems such as the WaveTrax, the operator retains steering and braking control even after the throttle is released--a relatively simple solution to a very serious danger.

The Coast Guard has yet to implement mandatory safety standards regulating PWC steering capabilities, and the industry has been free to set its own course on steering performance. Manufacturers are held merely to an alarmingly weak SAE "recommended practice." As a result, hundreds of thousands of dangerous PWCs remain in use, posing a continuing and serious threat to the safety of their operators and riders.

Notes

(1.) Compare David V. Shatz et al., Personal Watercraft Crash Injuries: An Emerging Problem, 44 J. TRAUMA 198, 201 (1998), with Personal Watercraft Indus.Ass'n, Get the Facts about Today's Personal Watercraft, at www.pwia.org/faqs/pw-qa. html (last visited June 30, 2006). The association is an affiliate of the National Marine Manufacturers Association and represents all five U.S. PWC manufacturers, though Polaris no longer makes these vessels.

(2.) NAT'L TRANSP. SAFETY BD., SAFETY STUDY: PERSONAL WATERCRAFT SAFETY, NTSB/SS-98/01, at 41 (1998), available at http://ntsb.gov/publictn/1998/ss9801.pdf (last visited June 30, 2006) [hereinafter NTSB SAFETY STUDY].

(3.) NAT'L TRANSP. SAFETY BD., MOST WANTED TRANSPORTATION SAFETY IMPROVEMENTS, STATE ISSUES: ENHANCE RECREATIONAL BOATING SAFETY (Sept. 2005), at http://ntsb.gov/recs/mostwanted/ rec_boat.htm (last visited June 30, 2006) [hereinafter NAT'L TRANSE SAFETY BD., MOST WANTED].

(4.) See Craig A. Good et al., Off-Throttle Turning Performance of Personal Watercraft for Accident Reconstruction, SOC'Y AUTO. ENG'RS, PAPER NO. 2005-01-1198 (2005) [hereinafter SAE Report]; see also NTSB SAFETY STUDY, supra note 2, at 16, 41-42.

(5.) See NTSB SAFETY STUDY, supra note 2, at 9.

(6.) See NAT'L MARINE MFRS. ASS'N, 2004 RECREATIONAL BOATING--STATISTICAL ABSTRACT tbl. 1.2, at 9 (2005), at www.nmma. org/facts/boatingstats/2004/files/Abstract.pdf (last visited June 30, 2006).

(7.) See, e.g., Kawasaki's Web site advertising its Jet Ski, www.kawasaki.com/product_detail.asp? product=92&category=4&tag=watercraft (last visited June 30, 2006).

(8.) See NTSB SAFETY STUDY, supra note 2, at 50.

(9.) Id. at 22.

(10.) David Lees, On the Hit List: Is the Design of the Rudderless PWC an Accident Waiting to Happen?, COTTAGE LIFE, Sept./Oct. 2002, at 59, 60.

(11.) Nat'l Transp. Safety Bd., Most Wanted, supra note 3.

(12.) See NTSB SAFETY STUDY, supra note 2, at 57.

(13.) See NAT'L TRANSE SAFETY BD., SAFETY RECOMMENDATION M-98-98,-99 (1998).

(14.) Lees, supra note 10, at 59, 60.

(15.) Id.; Joe Haberstroh, Coast Guard Redoes Safety Study: Author of First Report Had Ties to Industry, NEWSDAY: NASSAU & SUFFOLK EDITION, Nov. 14, 1999, at A59.

(16.) Haberstroh, supra note 15.

(17.) Lees, supra note 10, at 62-63.

(18.) Id. at 63.

(19.) See U.S. COAST GUARD OFFICE OF BOATING SAFETY, NATIONAL NONPROFIT PUBLIC SERVICE ORGANIZATION U.S. COAST GUARD GRANTS: FISCAL YEAR 2000, at www.uscgboating.org/grants/archive/nonprofit _2000.htm (last visited June 30, 2006).

(20.) UNDERWRITERS LABS., REPORT ON OFF-THROTTLE STEERING OF JET-PUMP PROPELLED CRAFT v (2001) [hereinafter UNDERWRITERS LABS., OTS REPORT].

(21.) Id. at 2-1; see also Ride Technology, PWC Off-Throttle Steering Loss (2002), at www.ripetech nology.com/offThrottle.html (last visited July 7, 2006).

(22.) Lees, supra note 10, at 63 (referencing UNDERWRITERS LABS., STANDARD FOR COLLISION-AVOIDANCE CAPABILITIES OF PERSONAL WATERCRAFT (2001)).

(23.) See SOC'Y AUTO. ENG'RS, STANDARD J2608 (2003).

(24.) Id.

(25.) Ride Technology, WaveTrax Rudders (2002), at www.ridetechnology.com/wavetrax. html (last visited June 30, 2006) [hereinafter Ride Technology, WaveTraxRudders].

(26.) UNDERWRITERS LABS., OTS REPORT, supra note 20, at 2-8.

(27.) See, e.g., Leonard Evans, TRAFFIC SAFETY AND THE DRIVER (1991); Richard A. Schmidt, Unintended Acceleration: Human Performance Consideration, in AUTOMOTIVE ERGONOMICS 431 (Brian Peacock & Waldemar Karwowski eds., 1993) ; Walter W. Wierwille, Dr/vet Error in Using Automatic Pedals, in 4 AUTOMOTIVE ENGINEERING & LITIGATION 359 (George A. Peters & Barbara J. Peters eds., 1991); Walter W. Wierwille, Driver Steering Performance, in 1 AUTOMOTIVE ENGINEERING & LITIGATION 407 (George A. Peters & Barbara J. Peters eds., 1984).

(28.) See Lees, supra note 10, at 61. Arctic Cat, which no longer manufactures PWCs, implemented a controlled-thrust design that prevents engine thrust from falling when the throttle is released, allowing the operator to turn the vessel. This system was available to other manufacturers for merely $10 per vessel.

(29.) See, e.g., Kawasaki's Web site, www. kawasaki.com/product_print.aspx?product116 (last visited June 30, 2006).

(30.) See SAE Report, supra note 4.

(31.) See Yamaha's Web site, www.yamahamotor.com/waverunner/products/modelfeatures/ 350/0/features.aspx(last visited June 30, 2006).

(32.) See Honda's Web site, www.hondanews. com/CatID0000?mid=2005090267029&mime= asc (last visited June 30, 2006).

(33.) See Lees, supra note 10, at 60.

(34.) See Bombardier's Web site, www.seadoo. com/en-US/Watercrafts/2006/Sport/WAKE/ Specs.htm.(last visited June 30, 2006).

(35.) Ride Technology, WaveTrax Rudders, supra note 25; see also Ride Technology, Collision Avoidance Technologies (2002), at www. ridetechnology.com/colAvoid.html (last visited June 30, 2006).

(36.) Ride Technology, WaveTraxRudders, supra note 25.

LEE BROWN is a partner, and AMANDA MORSE is an associate, with Brown, Sawicki, and Mitchell in Dallas.