When I was a kid, the brother of a friend got tossed from his 13 foot Boston Whaler, the boat spun around, ran him over, and he ended up a truly spectacular series of scars up his back and a metal plate in his skull. Ouch.
Injuries, damage and death are way up for recreational boaters. In 2020, the most recent year for which there is published data, the Coast Guard counted 5,265 recreational boating accidents, including 767 deaths, 3,191 injuries and approximately $62.5 million dollars of damage to property. Compared to 2019, for 2020 the number of accidents increased 26.3%, the number of deaths increased 25.1%, and the number of injuries increased 24.7%.
Anyone who was on the water in 2020 and 2021 can attest to the pandemic-induced increase in the number of recreational boats out there. It seems reasonable to assume that the number of inexperienced boaters was higher than usual, contributing to the high numbers.
Ranked, the biggest causes of injury were collision with another boat, swamping, collision with a fixed structure, grounding, and falling overboard. Operator inattention, operator inexperience, improper lookout, excessive speed, and machinery failure rank as the top five primary contributing factors in accidents. Alcohol played a role in 18% of boating fatalities.
Unless the accident occurred on a land-locked lake (and sometimes even then), cases of recreational boating injury (RBI) are generally heard in federal court. Any court, whether state or federal, deciding an RBI case will determine whether the injured party has demonstrated negligence on the part of the operator or perhaps the owner, if maintenance is an issue.
Negligence is defined, as in any case whether on land or on sea, as the absence of reasonable care. In many cases the plaintiff’s argument for negligence will be supported by the testimony of an expert in boat operation, to say, for instance, that under the circumstances of the case the operator ran the boat at excessive speed, or without an adequate lookout, or that he should have required all on board to wear lifejackets, etc.
Another powerful factor supporting a case for operator negligence is violation of a written law, whether a statute or a regulation. The Federal Boating Safety Act of 1971 (beginning at 46 United States Code Section 4301) provides for Coast Guard regulation of recreational boating safety, and provides that a state may not establish its own standards unless those standards are identical with Coast Guard standards. However, that law does not prevent an injured person from arguing that the defendant’s actions violated the state’s common law (law created through state court decisions, not through state statute or state regulation), unless the Coast Guard regulation directly contradicts the state common law.
Here’s an example, from a products liability case. Propellers kill people every year. The Coast Guard does not require propeller guards, but an argument can be made that an outboard engine manufactured without a propeller guard is unreasonably dangerous. In 2002, the United States Supreme Court faced with the question of whether a plaintiff could argue that an unguarded propeller was unreasonably dangerous under Illinois common law, and whether the plaintiff could present expert testimony supporting that argument. The court decided that because the Coast Guard’s regulations did not specifically come down against propeller guards, the plaintiff could make the argument and present the evidence.
Damages in recreational boating injury cases generally can included past and future medical bills, loss of past and future income, loss of enjoyment of life, pain and suffering, and disfigurement.
Recreational boating cases are hard to lawyer. Jurisdiction, the shoal on which many a maritime case has foundered, can be extremely tricky. To cite just one example, a big lake may have sightseeing craft operating on it which are subject to Coast Guard regulation, yet not be deemed “navigable” for the purposes of federal jurisdiction. Finding the right expert is typically critical, and negligence may be proved not just by reference to common law, but by looking to state law (for example, drunk driving statutes) and federal regulation. If you have a claim involving injury to a boater, you owe it to yourself to speak to an attorney with demonstrated skill in this area of the law.