Seaworthy
July 1993
The Critical Role of the Boat Owner in Investigating Accidents
By David Farrell, Jr.
As a general proposition, the best way for an attorney to serve a client is sooner rather than later. This is particularly true when boats, their owners or operators get into trouble because evidence can literally sail away on another vessel or get washed away with the ebbing tide. Regrettably, this is a litigious country. Regardless of how modest your boat or boating budget might be, as the owner of a "yacht" you will frequently be perceived as a "deep pocket" with plenty of money to satisfy a big judgment or at least throw into a settlement in an effort to make an accident claim go away. Therefore, the possibility of involved litigation needs to be addressed immediately after any boating accident.
The boat owner's personal role in an accident involving injury or collision, of course, will be critical in any subsequent legal proceedings. What is perhaps not so clearly understood, though, is the important role of the boat owner or operator as investigator: his or her observations at the scene, his or her interactions with other witnesses, and the background information he or she can provide will often make or break the case.
Knowing what to look for after an accident has occurred is important in reconstructing how it actually happened. Accordingly, before a maritime mishap occurs, every boater should be cognizant of the legal risks peculiar to recreational boating. A good way to do that is to acquire a working knowledge of the Boating Liability (Protection and Indemnity) coverage of the BOAT/U.S. Yacht Policy. That section of the policy identifies, in a general way, the types of incidents that can evolve into a lawsuit in which you, as a boat owner, are named as the defendant.
"Protection and Indemnity" is the Admiralty law term for liability insurance coverage of "third party claims" or, in other words, when someone alleges that you, as the boat owner, are liable (hence, "liability" coverage) for that person's losses. Collision damage to another vessel, damage to a dock or marina, as well as many personal injury claims fall under this coverage.
An important added benefit for the owner from this sort of legal cognizance is that onboard safety will be enhanced because you will have a better eye for "accidents that are waiting to happen" and can remedy them before they do.
Let's look at some general strategic considerations common to all investigations into maritime losses.
Assist and Report
After an accident, the boat owner must render assistance such as caring for any injured persons. This is not only the decent thing to do, but is required under the law. The law also requires a boater to notify state boating authorities of an accident resulting in damage in excess of $500, complete loss of the boat, injuries requiring more than first aid, or a fatality.
It is important to immediately thereafter notify BOAT/U.S. That is an obligation of your insurance contract and it makes good practical sense too; as soon as you have provided your observations to the BOAT/U.S. professionals, they will coordinate follow-up. The starting point of the BOAT/U.S. investigation will be the boat owner's observations on how the accident happened. Prompt and accurate reporting, without concealing weak points, is essential if a full assembly of facts and a competent evaluation of the legal case is going to be developed at an early stage.
The goal of a good marine investigation is to have control of the situation as it evolves, especially if it is headed toward possible litigation. This means eliminating the other side's ability to surprise you with a new fact they dig up or a witness who has just surfaced. If the totality of the evidence assembled indicates the boat owner was not liable and that the other side is taking an unreasonable position in an effort to "hold you hostage," a hard-line approach can be taken to defeat the claim.
Give All the Facts
In a serious injury or collision, BOAT/U.S. may appoint a maritime attorney to represent you. That service is part of what is provided by the liability portion of your BOAT/U.S. policy. You can be confident that the attorney is working on your behalf and you need to cooperate fully with him or her so that your best case can be prepared. That means the attorney immediately needs to know the weaknesses of your case, as well as the strengths. The sooner the boat owner lets the attorney know where perceived problems are, the sooner the attorney can assemble and preserve evidence that presents possible problems in a way that is helpful to your case.
For example, the boat owner may know of a witness who was present at the scene of a collision. By all means, the owner should tell the attorney so that the witness can be interviewed. Perhaps the witness will have articulate testimony that the boat owner was preoccupied and did not satisfy his duty to have a lookout pursuant to COLREG 5 and then turned hard to port in a head-on situation, in violation of COLREG 14. It is better to know that early, before a lawsuit has been filed! In that case, a prompt settlement with the other side would avoid unnecessary litigation as well as inconvenience, accelerating attorneys' fees, and poor economic results.
On the other hand, if a witness's observations support a conclusion that the owner was prudently operating his boat and that the collision was the other vessel's fault, it may be appropriate to obtain a prompt, sworn statement to that effect from the witness.
Obtaining a statement may even be appropriate when the witness claims not to have seen anything. The goal would be to "tie the witness down" so as to prevent his or her testimony from being used against you by opposing counsel during trial.
Another reason to tell BOAT/U.S. or the attorney about any and all possible witnesses is that people forget, get transferred, or disappear. If your case comes up in two years, your favorable witness may no longer be available to interview.
Examples
A recent case illustrates the importance of witness interviews. Neighbors downwind claimed their docks and boats were damaged when the "Melody" negligently dragged its mooring during Hurricane Bob (Claim #915262). Not only did the neighbors claim to be eyewitnesses, but one of them was an attorney who threatened a lawsuit to recover the neighbors' repair costs from the Melody's owner, a BOAT/U.S. insured.
As soon as telephone service was restored after the hurricane, the Melody's owner reported the incident to BOAT/U.S. When contacted by the author, the owner advised there were other witnesses to the events during the storm. One witness was located who turned out to be the Assistant Harbormaster. She refuted the attorney/ neighbor's allegation that the Melody was negligently moored. Also, during the hurricane, she had observed another boat hookup with Melody's mooring, which is what caused it to fail.
A sworn statement was promptly obtained from the Assistant Harbormaster to support the Melody owner's defense that the neighbors' damages were due to an overwhelming "Act of God," namely the hurricane. The neighbors' threat of litigation evaporated when they were presented with a copy of such a compelling statement.
In contrast, when notice of a potential claim is delayed, things often go sour. Skeptical of a crewman's alleged back injury, a vessel owner once represented by this author ignored the claim, hoping it would just go away. It didn't, but the only other crewman who could have witnessed the alleged accident did; he died of a drug overdose before the lawsuit was filed. Although the owner's skepticism was merited, without the missing witness it was felt it would be difficult to prove the alleged accident never happened, and an overly generous settlement was provided on the eve of trial.
In short, a good working relationship and a full exchange of information with your attorney are essential for him or her to capably represent you. There is no reason with the boat owner's help that an intelligent, factual, and legal evaluation cannot be completed within several months of an incident. That way, you and your attorney will have a solid grasp of the strengths and weaknesses of your case before any lawsuit is filed. Although litigation rules provide formal "discovery" procedures such as depositions and interrogatories, by then it may be too late to efficiently evaluate your case.
Restrict Information To Others
A corollary to being completely open to people entitled to your information is that you should not provide information to anyone who is not working on your behalf. Your comments should be directed only to BOAT/U.S. claims personnel, and surveyors and attorneys appointed by them to represent you.
If, for example, you are involved in an accident with injuries or major damage and you are asked to fill out a Coast Guard or state boating accident form, stick to the facts. Do not offer guesses, estimates or opinions. If you feel that you want to first discuss the matter with your attorney or one appointed by BOAT/U.S., it is your right to have that opportunity.
Similarly, it is unwise to comment to onlookers or marine workers about an incident in which you were involved because your words can be misconstrued and might come back to haunt you.
Conclusion
Experience shows that legal matters are handled more efficiently-final results are better, attorneys' fees are minimized, and the overall aggravation for the boat owner is reduced-when potential lawsuits are investigated immediately after a boating accident. Then, the physical evidence is fresh, witnesses are more easily located, and their memories are sharp. The boat owner can greatly assist the attorney appointed by BOAT/U.S. in promptly reconstructing what happened: there is no better way to evaluate the factual and legal aspects of a maritime mishap.
