by David J. 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.

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.

by David J. Farrell, Jr.

How important is expert testimony? If my client needs an expert at trial and I’m not convinced that the expert’s presentation is going to be good, we settle.

What makes for good expert testimony? An interesting, credible, and scientifically reliable opinion. The first two requirements are readily satisfied; science is the tricky part.

Federal Rule of Evidence 702, which governs the admissibility of expert opinions in federal court, states. “if scientific, technical, or other specialized knowledge will assist the trier of fact to understand the evidence or to determine a fact in issue, a witness qualified as an expert by knowledge, skill, experience, training, or education, may testify thereto in the form of an opinion or otherwise.”

Most maritime cases do end up in federal court. But, Rule 702′s standards generally apply in state court as well.

In 1993, Rule 742 spawned an important U.S. Supreme Court case: Daubert v. Merrell Dow Pharmaceuticals, Inc. That case dealt with medical experts, but expert witnesses in any field should be familiar with Daubert. And because expert testimony succinctly focuses the strengths and weaknesses of any case, sophisticated maritime litigants should understand the decision as well. Simply put: if Daubert’s ground rules aren’t satisfied, the trial judge won’t let the expert’s opinion get to the jury.

In this landmark case, the Supreme Court defined the trial judge’s role as a “gatekeeper” who should admit only reliable scientific evidence under Rule 702. The trial judge “screens” the expert’s testimony to determine if it will assist the jury in deciding the case. Daubert then outlined four flexible factors that the trial judge applies to ensure that only reliable – that is, trustworthy – expert testimony reaches the jury:

• Is the theory capable of testing to determine whether the expert’s hypothesis might be false?
• Are controls and other means of determining error rates built into the expert’s technique?
• Has the expert’s methodology been subjected to peer review and publication?
• Is the expert’s technique generally accepted in the relevant scientific community?

When the Supreme Court sent Daubert back to the lower court, it added a fifth factor: was the methodology based on research conducted by the expert independent of litigation? This was intended to prevent “hired guns” from inventing shoddy research methods in an effort to further the client’s case with untrustworthy evidence.

The hot topic now being litigated under the Daubert factors is “junk science.” For instance, can truth serum reliably elicit the truth from a witness? A judge in a Massachusetts murder case recently said no: such tripe fails Daubert’s requirements, and it would only confuse the jury to hear testimony about it.

On the other hand, you don’t need a Ph.D to be an expert. The most persuasive experts, in my opinion, are those who complement their scientific knowledge with practical experience. This is true of neurologists and naval architects alike.

Jurors will surely snore if the forensic reconstruction of a boating accident relies solely on engineering algorithms. On-site investigation techniques developed over years of experience can be just as reliable and perhaps more convincing. For example, angle-of-impact identification in a collision case, coming from an experienced marine surveyor, is the kind of “specialized knowledge” that can “assist the trier of fact” under Rule 702.

In the tragic case of Miss J v. Boatbuilder described in Eric Sponberg’s article, the trial judge determined that the competing experts’ testimony met the requirement of Daubert. Here are the judge’s instructions to the jury on how to consider the experts’ opinions in terms of Rule 702.

The rules of evidence ordinarily do not permit witnesses to testify as to opinions or conclusions. An exception to this rule exists as to those whom we call ‘expert witnesses.’ Witnesses who, by education and experience, have become expert in some art, science, profession, or calling, may state their opinions as to relevant and material matters, in which they profess to be expert and may also state their reasons for the opinion.

You should consider each expert opinion received in evidence in this case and give it such weight as you may think it deserves. If you should decide that the opinion of an expert witness is not based upon sufficient education and experience, or if you should conclude that the reasons given in support of the opinion are not sound, or if you feel that it is outweighed by other evidence, you may disregard the opinion entirely.

I’m always terrified listening to the judge instruct the jury. Years of dispute over technical facts and amorphous issues of law come down to a few minutes at the end of the case in which the judge tells the jurors what they need to do and how they need to do it, and sends them out to deliberate. If there are flaws in the jury system, they seem compounded right here: the judge’s instructions are oral and often complicated and vague, but the jurors aren’t allowed to take notes. How much gets lost?

Despite its flaws, the jury is still the best system ever devised to determine the truth. As we all know, expert witnesses are increasingly important in that quest. Under current law, expert testimony that satisfies Daubert and is cogently presented to the jury is the best trial strategy. Conversely, a floundering expert torn up on cross-examination is sure to sink the ship.

by David J. Farrell, Jr.

Much was written about achieving compliance with the International Safety Management Code (“ISM Code”) by 1 July 1998. Since that date has come and gone, what’s the likely impact for Members operating in USA waters?

First and foremost, it can be expected that widespread ISM Code compliance will result in safer ship operations and pollution prevention. But what about other consequences?

In the land of litigation, it is clear that ISM Code records will be relevant in almost any claim involving the Member. In Coast Guard casualty investigations and USA legal proceedings, all the paper documents and computer files related to (1) the Safety Management Manual, (2) the reporting of accidents and non-conformities, and (3) probably even internal audits and management reviews will become legal evidence.

Careful writing is therefore imperative: in the hands of smart opposing attorneys, ISM Code records will be as important as log entries.

Accordingly, there can be little doubt that formal, immediate production of ISM Code records will become required and routine in any USA legal proceedings involving the Member. This is not necessarily all bad: whereas liability in civil cases may become clear because the Member’s documented standard of care was breached, non-liability too might be concluded if operating procedure was reasonable and precisely executed as planned.

Criminal Law

In the criminal law realm, however, prospects for the future are most alarming. The ISM Code’s “Designated Person” as well as the Master are now criminal targets under obscure provisions of USA law whenever there is an oil spill in USA waters. Members should be aware, for example, that the Refuse Act of 1899 and the Migratory Bird Treaty Act of 1918 make it a criminal offense to discharge refuse (i.e., oil) or kill a sea bird — even if the spill is unintentional and merely negligent. These are known as “strict liability” criminal laws that apply to both the Member’s company organization and its individual employees.

The ISM Code records constitute a detailed road map for criminal prosecution of these and other anti-pollution laws. Astoundingly, huge dollar fines and jail time have become likely following any serious spill.

Recognizing that criminal liability absent bad intent is unfair to the accused and will interfere with spill response cooperation with the Coast Guard, there is some Congressional recognition that strict liability criminal laws need to be changed. But as demonstrated so well by the Clinton impeachment hearings, Congress is most interested in politics, so drastic anti-pollution laws are unlikely to change soon given American voters’ emotional reaction to oil spills. Last winter’s torpedoing of the New Carissa off Oregon did nothing to enhance public confidence in USA spill response. There are many challenges ahead!

State Laws and Spills

Internationally perceived as one nation, Members must remember that the United States of America is a federal union comprised of 50 states — each with its own, separate legal system. Nowhere is this more apparent than with the pollution laws and regulations now evolving in most of the 30 states bordering the Atlantic, Pacific, Gulf of Mexico, and Great Lakes.

The Oil Pollution Act of 1990 (“OPA ’90″) was the USA federal government’s response to Exxon Valdez. As Y2K approaches, individual state oil pollution laws, regulations, civil recoveries, criminal fines, and penalties add new layers of concern for Members calling here.

The 1998 INTERTANKO decision out of Washington State confirmed that states can make their own oil pollution laws. In May 1999 the case was appealed to the USA Supreme Court with this issue: can the states, in addition to imposing their own compensation laws, also impose their own prevention/clean-up regulations on top of OPA ’90′s federal regime?

State waters are generally considered to lie within 3 miles of shore, but those waters are also considered part of USA navigable waters. In sum, a “patchwork quilt” of pollution laws is fast developing, such that on top of OPA ’90 which applies throughout the USA each different state is enforcing its own set of pollution laws.

State of California

Members should pay particular attention to oil pollution developments in California, which has a larger economy than most nations. Since 1990, California has had a comprehensive state oil spill program for tankers and barges operating in state waters. This year, California state regulation will be extended to nontank vessels in an effort to prevent and respond to bunker oil spills.

By 1 September 1999 every nontank vessel of 300 gross registered tons or more operating in California waters will be subject to comprehensive state regulation. Nontank vessels are defined by California as vessels not designed to carry oil as cargo (such as dry cargo vessels, cruise ships, and car carriers). Each needs to have a pre-approved oil spill contingency plan for a worst case scenario plus a USD 300 million Certificate of Financial Responsibility. Violations will carry stiff civil and criminal penalties.

The biggest problem is logistics. Finalized regulations will note be ready until August, leaving less than a month to comply by the 1 September 1999 deadline. However, the draft regulations are unlikely to change dramatically, so Members calling in California should use them as a guideline.

Ms. Joy Lavin-Jones of the California Office of Oil Spill Prevention and Response, telephone (916) 324-7889, has been helpful in providing information about the new nontank vessel requirements. She believes compliance will be easy for anyone familiar with tanker contingency plans; for Members who are not, your author can provide some suggestions.

The Northcape spill: government sponsored environmental terrorism?

In January 1996 on the Atlantic coast of the tiny State of Rhode Island the maritime industry woke up to its worst nightmare.

During heavy but not unusual winter weather, a fire disabled a tug towing the oil barge NORTH CAPE. Lacking a proper windlass, the anchor hung up and could not be dropped so the barge grounded, spilling almost 1 million gallons of No. 2 oil, most of which was blown offshore.

In addition to undisclosed civil settlements with lobstermen for lost fishing claims there remains a hotly contested Natural Resource Damages Claim demand totalling USD 27.6 million. Part of this involves protecting lakefront loon nesting habitat in the State of Maine so that replacement birds will be able to winter off Rhode Island.

On the criminal side, prosecution came from two directions, targeting both company and individual defendants.

Two years after the spill, the criminal charges were settled in what is known as a plea bargain agreement. The USA federal government obtained a $3.5 million fine against the company for violations of OPA ’90, the Refuse Act of 1899, and the Migratory Bird Treaty Act of 1918. The State of Rhode Island also obtained a USD 3.5 million fine against the company for violation of the Rhode Island Oil Pollution Control Act. In addition, the company paid $1.5 million to a conservation organization and was required to spend USD 1 million upgrading safety equipment. Furthermore, the company’s president was fined USD100,000 and placed on criminal probation for 3 years while the tug’s captain was fined USD 10,000 and placed on criminal probation for 2 years.

Conclusion

Frustratingly, it seems that merely carrying oil in USA waters constitutes a crime. That’s not really true, of course – unless there’s a spill.

As a result Skuld correspondents in the United States have established relationships with local criminal defense attorneys who can be telephoned on short notice during an incident.

Besides avoiding a spill in the first place, a prompt, coordinated, civil and criminal response following an incident is the Member’s best defense in the litigious USA.

by David J. Farrell, Jr.

“Setting Standards for Safer Boating” is the mantra of the American Boat & Yacht Council (ABYC). As any marine surveyor, repairer, or builder worth his salt knows, ABYC is a non-profit organization that develops and publishes standards for “the design, construction, equipage, and maintenance of small craft.”

As stated in the ABYC Preface, though, its “standards and recommended practices are advisory only; their use is entirely voluntary.” How important are ABYC standards, then, in the context of maritime litigation? In a recent decision issued by the United States District Court for the Eastern District of Virginia, affirmed by the Fourth Circuit Court of Appeals, they were vital.

In Pappas v. Potomac Party Cruises, Inc., 2000 U.S. App. LEXIS 12443, 215 F.3d 1320 (4th Cir. 2000), plaintiff Pappas worked as a waiter aboard The Dandy, a small passenger vessel that provides dinner and dancing while navigating the Potomac River. Two sets of steps, one at the stern, the other at the bow, lead from The Dandy’s dining area to its galley. While walking down the stern steps during a lunch cruise, Pappas slipped and fell to the galley deck, allegedly injuring his lower back. He sued the defendant vessel owner for Jones Act negligence as well as the vessel’s unseaworthiness.

The case was tried to a judge without a jury. Each side called one expert witness to address the adequacy of the tread on the stern steps. The plaintiff’s expert opined that the tread was unacceptable because it was not “nonskid,” as called for by many government standards. In contrast, the defendant’s expert testified that the tread was more than adequate because its “width of 12 inches far exceeded the 5-inch minimum recommended by the American Boat and Yacht Council.”

Both expert witnesses conceded that the standards they relied on were not binding as a matter of law. The plaintiff’s expert admitted, for example, that the building code standards he relied on apply to buildings rather than ships and that MARAD (Maritime Administration) guideline specifications for merchant ship construction were inapplicable because The Dandy was not built under a maritime subsidy. Defendant’s expert also acknowledged that the ABYC standards he relied on were not mandatory. But as a former Coast Guard inspector, he further testified that the ABYC standards, though voluntary, provide “the standard that would generally be used by the Coast Guard” when reviewing small passenger vessels.

The trial judge held the defendant vessel owner not liable. He specifically found that defendant’s expert, who relied on ABYC standards, was more persuasive than plaintiff’s expert, who relied “on standards not applicable to vessels such as The Dandy.”

The appellate court affirmed. Noting at the outset that the competing testimony of the two experts was like “two ships passing in the night,” the appellate court concluded that the trial judge’s credibility determination favoring the defendants’ expert witness was “pivotal.” It held that the defense expert’s experience and “his use of the more appropriate ABYC standards” coupled with his “clear opinion that the stairs were reasonably fit for their intended purpose” were a sufficient basis for the trial judge’s conclusion.

Learn Your ABYCs

Litigation involving ABYC standards is nothing new. More than 20 years ago, in Wolff v. Whittaker Marine & Manufacturing Co., 484 F. Supp. 1021 (E.D. Mo. 1979), the defendant in a houseboat explosion case relied on ABYC standards to show that its design and manufacture of the vessel were not defective. In the explosion, three men aboard the Patty Kay were severely burned when one switched on a light in the cabin, and another turned on a stove burner, 30 to 60 minutes after fueling. One of the men later died and a wrongful death suit followed.

The United States District Court for the Eastern District of Missouri entered judgment for the houseboat’s designer/manufacturer, who had complied with ABYC standards, explaining:

• The evidence does not support the allegation that the boat’s design was unreasonably dangerous in any respect. The evidence was that the boat complied with the standards of the ABYC . . .
• The ABYC standards in fact implicitly recognized that boats are designed such that electrical equipment is located where flammable vapors are present; the evidence was that the Patty Kay met the standards as to the prevention of ignition of those fumes as well as the state of the art in the pleasure craft industry …. Again, the testimony of [defendant's expert] was that the Patty Kay complied, from a practical point of view, with the ABYC recommendation that a generator be placed “as high above the bilges as practicable” or “as possible.” The Court does not find that the Patty Kay’s conformity to the actual practices of the pleasure craft industry rendered it “unreasonably dangerous.”

Know What ABYC Standards Are, and What They Are Not

None of this is intended to suggest that the ABYC standards will make or break your maritime case on their own. The expert witness who relies on those standards or refutes them, as the case may be, must be qualified to do so and know what he is talking about.

In Dunn v. Southern Charters Inc., 539 F. Supp. 661 (E.D.N.Y. 1982), six persons were injured and one killed when a chartered yacht, the Second Wind, burned at anchor off the coast of Rhode Island. At trial, it was plaintiffs’ expert who relied upon ABYC standards in an attempt to prove that the vessel’s construction was defective. The court rejected that contention, noting:

• Although plaintiffs attempted to show that the construction of the Second Wind did not comply with safety recommendations of the ABYC . . ., such recommendations do not constitute legal standards of seaworthiness, since the organizations are non-governmental entities. Plaintiffs’ expert . . . testified that the boating industry universally adheres to such recommendations, but the Court is not satisfied that either through training or experience [plaintiffs' expert] is qualified to judge the boating industry’s practice in this regard.

What Can Be Learned From These Cases?

The cases excerpted above are instructive for marine surveyors who anticipate giving expert testimony for several reasons.

First, ABYC standards are not applicable to all cases and the expert who tries to adopt them when they don’t fit (or ignores them when they do) will quickly lose credibility with the judge and jury.

Second, liability does not turn on ABYC standards alone. Rather, as in the Pappas case, the winning expert will use ABYC standards as part of the evidentiary support for his opinion. As ABYC’s Charlie Game notes from his experience as a defense expert: “Non-compliance with the standards, you’re in trouble; compliance with the standards, you’re in a whole lot less trouble.”

Third, be up front when testifying and readily acknowledge that ABYC standards are industry recommendations and not the law. As the Preface states, ABYC standards are voluntary, and “are not intended to preclude attainment of desired results by other means.”

Overall, the ABYC standards are impressive in their scope and goal of enhancing safe boating. Like it or not, in our society litigation is an important means of implementing that goal. With the prestigious United States Fourth Circuit Court of Appeals’ recent validation of ABYC standards in the Pappas case, it can be expected that applicable ABYC standards will commonly be a pivotal issue in maritime litigation.

Docket No. 97-063
File No. 76-887
Wareham
April 9, 1998
Edna H. Travis, Administrative Law Judge

FINAL DECISION – ORDER OF DISMISSAL

Summary

Department’s denial of request for wetlands superseding order of conditions on the grounds that it was untimely is sustained and the appeal is dismissed.

Procedural History

This is a wetlands appeal brought by Christopulos Realty and Investments, Inc., the owner of lots adjacent to property of the applicant, Joseph DeMaio, in Wareham. The Wareham Conservation Commission approved Mr. DeMaio’s request to construct a pier by issuing an Order of Conditions on July 27, 1995, which it subsequently amended on December 10, 1996. On February 26, 1997, following construction of the pier and well beyond the ten day appeal period, the petitioner requested that the Department issue a superseding order of conditions. Its letter stated that “we only recently became aware of the pier and that was when actual construction began.” The Department denied the request as untimely.

Following a prehearing conference, on September 10, 1997 I issued an order identifying the issues on appeal, which included “when did the petitioner Christopulos Realty and Investments, Inc. receive the statutorily required. notice” 1 and “was the request for a superseding order of conditions received within 10 days of the time notice was received?”

Subsequently, the parties stipulated that the petitioner “mistakenly” did not receive the statutorily required notice. The applicant filed a motion for summary decision, accompanied by an affidavit and various letters, all of which addressed the time period in which Florence Patterson, Clerk/Treasurer of Christopulos Realty and Investments, Inc. became aware of the construction of Mr. DeMaio’s pier. The Department supported the applicant’s motion. On December 1, 1997 the petitioner responded to the applicant’s motion and filed a motion for remand. The petitioner attached affidavits of its own, to the effect that Deborah Patterson, the daughter of Florence Patterson, had first received notice on February 13, 1997 when she received a copy of the order of conditions via Federal Express from a real estate attorney. If February 13,1997 were treated as the operative date, the appeal was timely.

I concluded that while there appeared to be no factual dispute as to when the petitioner received a copy of the order of conditions, there appeared to be a genuine issue of material fact as to when the petitioner was aware, or should have been aware, of an order of conditions had issued for the project. I held an evidentiary hearing on that issue on January 12, 1998. The petitioner called Deborah Patterson, Assistant Clerk of the Land Court, the real estate attorney David Delaney, Florence Patterson, and Mary McAulliffe, the president of the Jefferson Shores Association, a local landowners’ group. Mr. DeMaio testified for himself, as did K. D. Tripp, the contractor who had built the pier, and Barbara Colletti, a neighbor and past officer of the Jefferson Shores Association. The Department presented no witness testimony. Following the hearing I ordered the parties to file briefs. 2

In addition to arguing that the date within which to appeal should run from February 13, 1997, the date Deborah Patterson actually received a copy of the order of conditions from Mr. Delaney, the petitioner argues that the effect of the applicant’s failure to comply with the statutory notice provisions is to deny the petitioner due process. It seeks to have the wetlands permit application remanded to both the conservation commission and the Department’s Regional Office for a “total review of File No. SE 76-887.” Both the Department and the applicant contend that the time should run, at the very latest from February 7,1998, the date Florence Patterson observed the pier and Deborah Patterson spoke to the conservation commission administrator and was informed of the existence of “permits” for the pier.

Discussion

To be timely, a request for a superseding order of conditions must be filed within ten business days of the issuance of an order of conditions. 3 310 CMR 10.05(7)(c); 310 CMR 10.05(1). This statutory ten day period is jurisdictional. Generally, an applicant may rely on the period’s expiration to commence work on an allowed project.

We have nevertheless, in rare circumstances, tolled the ten day period where parties who were entitled to notice failed to receive it. In those cases, we have held, in the context of appeals from the issuance of a superseding order of conditions, that the time to appeal does not begin to run against a party entitled to receive the SOC until issuance of the SOC was in fact communicated to that party. Matter of Lenk, Docket No. 95-077, Final Decision, 3 DEPR 18 (February 6, 1996) [appeal period tolled until petitioner conservation commission received copy of Department's cover letter which accompanied determination of applicability; appeal dismissed as untimely because not within 10 days of that date]; Matter of Bianco, Docket No. 93-063, Decision on Department’s Motion to Dismiss, 2 DEPR 227 (November 7, 1995)[petitioner had ten days after the SOC was sent to her within which to file an appeal]; Matter of Bay Park Development Trust, Docket No. 88-29 1, Final Decision-Order of Dismissal, 7 MELR 1255 (March 31, 1989)[time within which to appeal SOC begins when petitioner receives copy of SOC; appeal dismissed as untimely because not within 10 days of that date]. See also, Matter of Cross Point Limited Partnership, Docket No. 95-088, Final Decision-Dismissal, 3 DEPR 82 (April 30, 1996), reconsideration denied, 3 DEPR 161 (July 22, 1996)[applying the same principle to a request for a superseding order of conditions from the Department's regional office].

In Matter of Cross Point a petitioner claiming to be an abutter entitled to notice did not receive a copy of the order of conditions until well after the ten day period to request an SOC had run. Its consultant discovered the permit in a set of documents disclosed in connection with a court action. The petitioner requested an SOC, but the Department denied the request as untimely. Without determining whether defects in notice of proceedings before a conservation commission are reviewable in this forum, ALJ James Rooney followed the reasoning of earlier cases that had tolled the ten day period in appeals of SOCs. Writing for the Commissioner, he held that the ten day period within which to request an SOC was tolled until the petitioner had received notice. He then concluded that the appeal should be dismissed in any event since more than ten days had passed between the date the petitioner received notice and the date the request was brought.

There, as here, the petitioner expressed due process concerns, arguing that a “post-deprivation” remedy did not suffice and that the applicant should be required to have its project reviewed again at the local level. Without deciding whether constitutional due process claims were properly brought in this forum, ALJ Rooney concluded that due process was satisfied by a tolling of the ten day appeal period in any event, since that provided the petitioner with an opportunity to be heard before the time to request an SOC had expired.

Consistent with Matter of Cross Point, I conclude that the period of time within which the petitioner had to bring its request for an SOC was tolled until notice of the issuance of the permit was communicated to the petitioner. Even assuming that a constitutional due process challenge were property before me, tolling would be the remedy, if any, to which the petitioner was entitled. Id. at fn. 7.

Under Massachusetts law “a person has notice of a fact when, from all the information at his disposal, he has reason to know of it.” Michelin Tires (Canada) Ltd v. First National Bank of Boston, 666 F.2d 673, 682 (1st Cir. 1981). Moreover, “the party to a transaction, whose rights are liable to be injuriously affected by notice, cannot willfully shut his eyes to the means of acquiring knowledge which he knows are at hand and thus escape the consequences which would flow from the notice had it been actually received.” Conte v. School Committee of Methuen, 4 Mass. App. 600, 356 N.E. 2d 261, 265 (1976). Consistent with our previous administrative decisions and with Massachusetts case law, I hold that where, as here, the ten day period within which to appeal is tolled, it begins to run from the time information has been communicated to an appealing party from which it could reasonably conclude that it needed to act to protect its rights.

Based on the testimony and the affidavits, the following facts are uncontroverted. Beginning at least on July 31, 1993, Florence Patterson attended a number of meetings of the Jefferson Shores Association at which Mr. DeMaio’s plan to build a pier was discussed. The Notice of Intent was provided to the Jefferson Shores Association on April 14, 1995 and was published in the Wareham Courier on April 27,1995. During the summer of 1996, one of the adult members of the Patterson family inspected stakes which had been placed at the site outlining the eventual contours of Mr. DeMaio’s pier. Between January 25 and 30,1997, K. D. Tripp, the contractor who built the pier, drove piles at the site preparatory to construction of the pier. He completed construction of the pier on approximately February 14, 1997.

Most importantly, Deborah Patterson testified that on February 7, 1997 she received a phone call from her mother who had just driven down to the Wareham property from her home in Worcester. Her mother reported to her that construction work had begun on Mr. DeMaio’s pier. On that same day, Deborah Patterson called the Town Hall and spoke to the conservation commission administrator, who advised her that Mr. DeMaio had “the necessary permits” to build a pier. 4 She then hired Mr. Delaney, who searched the Registry of Deeds and sent her a copy of the permit, which she received on February 13, 1997.

I conclude that notice of the issuance of the permit was communicated to the petitioner 5 on February 7, 1997. That was the date Florence Patterson observed the pier construction and the date she telephoned Deborah Patterson, who spoke to the conservation commission administrator and was told of the existence of the permit. From all the information at Deborah Patterson’s disposal on that date, she had reason to know that the permit had issued. The ten day period commenced on February 7,1997. Ten business days from February 7, 1997 was February 24, 1997. As the petitioner did not file its SOC request until February 26,1997, the request was untimely. 6

Disposition

The Department’s dismissal of the request for an SOC is sustained and this appeal is therefore dismissed for lack of jurisdiction, pursuant to 3 10 CMR 1.0 1 (1 1)(d) 1.

Reconsideration and Appeal

The parties to this proceeding are hereby notified of their right to file a Motion for Reconsideration of this Decision, pursuant to 3 10 CMR 1.01(14)(d). Such a motion must be filed with the Docket Clerk and served on all parties within seven business days of the postmark date of this Decision.

Any party may appeal this Decision to the Superior Court pursuant to the Massachusetts Adminisuative Procedure Act, G.L. c. 30A,  14(l). The complaint must be filed in the Court within thirty days of receipt of this Decision. The foregoing Decision is hereby adopted as my Final Decision in this case.

[signed] David B. Struhs, Conunissioner

Notes

1. M.G.L. ch. 131, sec. 40, provides that a copy of the notice of intent is to be sent to “all abutters within one-hundred feet of the property line of the land where the activity is proposed.”

2. I identified two legal issues:

1. Where the petitioner is an abutter who failed to receive the statutorily required notice set forth in M.G.L. ch. 131, sec. 40, paragraph 2, and assuming that the time within which to file an appeal is tolled until the petitioner receives notice, how should the date of notice be determined:

a. is it the date the petitioner received a copy of the order of conditions or should an earlier date be applied? If an earlier date should be applied, what is that date and why should it be applied?

b. what significance should be afforded to the publication of notice in the Wareham Courier and the mailing of notice to the Jefferson Shores Association, of which the petitioner is a member?

2. What relief does the petitioner seek in this forum and why?

3. Likewise, an appeal of a superseding order or determination of applicability must be filed within ten business days of the issuance of a superseding order of conditions. 310 CMR 10.05(7)(j); 310 CMR 10.05 (l).

4. In theur briefs following the evidentiary hearing, both the Department and the applicant submitted affidavits of David C. Pichette, the Conservation Administrator of the Wareham Conservation Commission. The Department also included the affidavit of Daniel Gilmore, the Department analyst. The petitioner objects to any reference to the Pichette affidavit and has moved to strike both affidavits on the grounds that the evidentiary portion of the hearing has been closed. This decision is based entirely on evidence from the hearing itself, and I have not relied on either of the affidavits. Therefore, the motion to strike the affidavits is denied as moot.

5. The petitioner is a corporation founded by a Mr. Christopolus, Deborah Patterson’s grandfather, and is controlled entirely by family members. From the testimony it became clear that although Deborah Patterson is not an officer of the corporation, she frequently acts as on behalf of the corporation and has been authorized by the corporation to do so. There is no dispute that notice to her can be treated as notice to the corporation.

6. In light of the untimeliness of the request for an SOC, I need not consider whether cases grounded in a defect of notice at the conservation commission level are properly brought in this forum.

FINDINGS, RULINGS AND ORDER FOR JUDGMENT

JOHN F. SWEENEY, Plaintiff

vs.

JOSEPH BATAL and BOAT/US, Defendants

After hearing the parties and their witnesses, and upon consideration of all of the evidence, both real and testimonial, and the reasonable inferences to be draw therefrom, I find that on August 19, 1991 both Plaintiff and Defendant were boat owners. Plaintiff’s boat was a 25 foot “Alden Sloop” and Defendant’s boat was a 36 foot “Catalina.” I find both boats had moorings in Cotuit Bay (so-called). I find that August 19, 1991 was the day of “HURRICANE BOB.” I find that both boats were found on Ropes Beach after the hurricane and that Ropes Beach is approximately one-half mile from Cotuit Bay. I find that Defendant’s mooring was south of Plaintiff’s mooring (that is to say closer to the open ocean). I find that the winds from Hurricane Bob came from a general southerly direction. I find that the hurricane winds were often in excess of 100 miles per hour. I find that Cotuit Bay could be characterized as a “disaster area” immediately after the hurricane. I find that upward of 200 boats moored in Cotuit Bay were dislodged or uprooted from their moorings and ended up on the beach or surrounding beaches – (exact number unknown). I find that very few boats held their moorings and most of those boats that did hold their moorings were overturned and capsized. I find that when Hurricane Bob passed, Plaintiff’s pennant line was found entangled in Defendant’s rudder, again both boats ending up on Ropes Beach. I find that Plaintiff’s boat suffered extensive damage which I find was caused by colliding with surrounding trees and debris and not from colliding with other boats. I find that Defendant’s boats suffered some damage however, said damage does not appear from collision with other boats. I find that the Defendant had a permit to moor his boat and that the size of his mushroom (350 lbs) was known and approved personally by the Assistant Harbormaster and Mooring Officer. As a supplemental finding, I find that the Defendant’s pennant line was 1” nylon. I find that the Defendant did attempt to secure his boat from the oncoming storm (noticed as first, high winds, then tropical storm). I find that the Defendant used those safeguards which a skillful and vigilant boat owner would exercise for an upcoming storm. I find no negligent conduct by the Defendant in attempting to secure his boat. I find that Hurricane Bob was an act of god (VIZ MAJOR) and something so catastrophic that it triumphed over reasonable safeguards taken. I find that the force of “Bob” was an act which human foresight could not reasonably be expected to anticipate and prevent. I make no finding as to how or where plaintiff’s pennant line became entangled in Defendant’s rudder. As a supplemental finding, I find no proximate cause by the Defendant for the damage sustained by the Plaintiff.

WHEREFORE, I find for the Defendant (Batal) on Counts One and Two of Plaintiff’s Complaint.
_______________________

GEORGE H. LEBHERZ, JR.
Justice

ENTERED: January 19, 1994

For decades the decline of the U.S. maritime industry has been a cruel reality for admiralty lawyers, who at times have had to question their choice of careers.

But finally there’s good news for revitalizing domestic maritime commerce by relieving landside gridlock in a green way. Everyone should win with the growth of short sea shipping (“SSS”).

“America’s Marine Highway a/k/a Short Sea Shipping: A Win-Win Proposition”,
5 Benedict’s Maritime Bulletin 221 (Third/Fourth Quarter 2007).

Advocated in favor of Cape Wind’s offshore wind farm proposed for Nantucket Sound as not detrimental to commercial or recreational fishing and beneficial in reducing oil spills.

“A Red Herring: The Wind Farm Threat to Fishing”,
Cape Cod Times, (June 8, 2003)

Here’s a Miranda Warning for marine surveyors: Anything you write can and will be used against you in a court of law. You already knew that; so what else is new? Actually not much, but it’s nonetheless worth reviewing some of Miranda’s corollaries.

I wrote that 15 years ago in Exchange and it still holds true today. But in 2010 there was a federal law amendment, which surveyors should know about. In federal court cases, Federal Civil Procedure Rule 26(b)(4) now protects from discovery an expert’s draft reports preliminary to the final version when prepared in conjunction with an attorney. The reason for this change is “to protect counsel’s work product and ensure that lawyers may interact with retained experts without fear of exposing those communications to searching discovery” by opposing counsel. So, for example, it is now safe for a defense attorney to share “work product” with the insured’s expert in building the case without fear that legal strategies will be discovered via the expert’s file.

Read the article

Probably the biggest surprise facing a non-admiralty lawyer handling a maritime casualty is the possibility that a vessel owner might be able to limit its dollar liability to the post-casualty value of the vessel and force all related litigation into one federal court forum without a jury.

This applies to both commercial vessels and recreational boats — even jet skis — and raises important issues for the lawyer representing a vessel owner in conjunction with insurance defense counsel as well as for lawyers representing victims with personal injury, death, and property damage claims against the vessel owner.

Read the article