Boat Accident Claim: Who Is Liable on the Water

The operator first. A boat operator owes passengers and others on the water reasonable care, and the common failures are speed in congested or shallow water, failure to keep a lookout, operating under the influence, inexperience, overloading, ignoring weather, and wake that swamps or capsizes smaller craft. Navigation rules, the Coast Guard's rules of the road and state equivalents, define right of way between vessels, and a collision usually involves a violation. Passengers thrown by a sudden turn or a wake, or injured in a collision or grounding, have claims against their own operator for negligent operation.

The owner second. An owner who lends a boat to an inexperienced, impaired or underage operator is liable for negligent entrustment, and in several states by statute for any permissive operator's negligence. Rental companies, marinas, charter and tour operators are liable for inadequate instruction, poor maintenance, unsafe loading, inexperienced crew and failure to monitor conditions, and they defend with the waiver every renter signs, enforced for ordinary negligence in some states and not for gross negligence in most.

Other parties: another vessel's operator in a collision, under the navigation rules; a manufacturer for a defective hull, engine, steering or fuel system, with carbon monoxide poisoning from exhaust and fuel fires as recurring product claims; a marina or dock owner for a defective dock or ladder under premises rules; and a government body for an unmarked hazard or a negligently operated public vessel, under its tort claims procedures.

Boating on a lake entirely within one state is governed by that state's law: its boating statutes, its negligence and comparative fault rules, and its injury deadline. Boating on navigable waters, coastal waters, rivers and lakes that connect to interstate or international commerce, which includes the Great Lakes, major rivers and coastal bays, may be governed by federal maritime law, which applies pure comparative fault regardless of the state, has its own rules on damages, including limits on recovery for a death on the high seas, and allows the injured person to sue in federal or state court.

The feature of maritime law that most affects recreational boating claims is the vessel owner's limitation of liability, a nineteenth-century statute that lets a vessel owner limit liability for an accident to the value of the vessel after the accident, which for a sunk or damaged pleasure boat may be nearly nothing, if the owner had no knowledge of the negligence that caused it. Owners and their insurers file limitation actions in federal court after serious accidents, and the injured person must contest the owner's claimed lack of knowledge, which for an owner-operator is usually easy and for an absent owner harder.

Whether maritime law applies, and whether a limitation action can succeed, are questions an attorney who handles boating cases evaluates in the first weeks, because the limitation action has a six-month deadline from the owner's receipt of a written claim and shapes everything after.

Suppose you were a passenger on a friend's boat on a large lake when he accelerated hard through the wake of a passing boat, throwing you against the gunwale and fracturing two vertebrae. You spent four days in hospital and three months in a brace, with $58,000 in medical bills and eleven weeks off work. Your friend had been drinking, as had most of the boat, and the state's boating agency investigated.

The claim was against your friend for negligent operation, which the agency's report, witness statements and his blood alcohol level supported. He carried a boat policy with $300,000 in liability coverage, which many lake boaters do not, and the claim was presented to that insurer. The lake was within the state and maritime law did not apply, so the state's comparative fault rule governed; the insurer argued you had been drinking and not holding on, and assigned 20 percent, which was negotiated down with witness accounts of the sudden acceleration.

The claim settled within the policy, with a punitive component reflected in the figure because the state allowed punitive damages for operating under the influence and the insurer wished to avoid the exposure. Had your friend carried no insurance, which is common, the claim against him personally would have depended on his assets. All figures are hypothetical; the operator-passenger claim with alcohol involved is the characteristic recreational boating claim.

Boating accidents happen away from police and cameras, and the evidence is what the people on board and the agency's investigation record.

• Get medical care immediately, including a trip to shore for anything beyond minor; water rescues and delayed treatment are part of the record.
• Report the accident to the state boating agency or the Coast Guard as the law requires; operators must report accidents with injury, and the report starts the investigation.
• Get the names and contact details of everyone on every boat involved, and of any witnesses on shore or other vessels.
• Photograph the boat, the damage, the conditions, the water and any hazard, and the boat's registration and hull number.
• Write down what the operator said and whether alcohol was involved, and tell the investigating officer.
• Ask the owner whether the boat is insured and with whom; many are not, and the answer shapes the claim.
• If the accident was on navigable water, consult an attorney promptly; a limitation of liability action may be filed by the owner and must be contested.

Boating law is state law for inland waters and may be federal maritime law for navigable waters, and the choice affects the fault rule, pure comparative under maritime law and the state's rule otherwise; the damages available, including the limits on death claims on the high seas; the owner's limitation of liability; and the forum. State boating statutes set operator age and education requirements, speed and no-wake rules, equipment and life jacket requirements, and boating under the influence offenses, and violations are evidence of negligence.

Insurance is required for boats in only a few states and for certain vessels, so most recreational operators are uninsured or covered only by a homeowner's policy that extends to small, low-powered boats and excludes larger ones and personal watercraft. Rental and tour operators carry commercial coverage. Uninsured boater coverage exists on some boat policies for the injured person's own protection. Waivers at rental operators are enforced for ordinary negligence in some states and not for gross negligence or against minors in most.

Comparative negligence applies to the injured person's own conduct, including alcohol, failure to wear a life jacket where required, and riding in an unsafe position, with the contributory negligence states barring recovery for any share on inland waters. Deadlines are the state's injury statute, one year in Tennessee and Kentucky, two in Texas, California, Florida and Georgia, three in New York and North Carolina, and three years under maritime law for personal injury; government claims for public vessels or unmarked hazards have notice deadlines of months.

Personal watercraft, jet skis and similar craft, are involved in a disproportionate share of boating injuries, because they are fast, operated by inexperienced and often underage riders, and lack brakes and off-throttle steering on older models. Claims follow the same structure, operator negligence and owner entrustment, with rental operators frequently involved and the state's age and education rules for personal watercraft as evidence. Collisions between personal watercraft and with swimmers are the common claims.

Wake injuries, passengers thrown or smaller craft swamped by a large boat's wake in a no-wake zone or near shore, are claims against the operator who made the wake, and the no-wake rules are the standard. Carbon monoxide poisoning from engine exhaust, on and around boats with rear swim platforms and in enclosed cabins, has killed swimmers and passengers, and supports claims against operators who ran engines with people in the exhaust zone and against manufacturers for exhaust design.

Dock and marina injuries, falls from defective docks and ladders, electrocution from faulty marina wiring, which has killed swimmers near docks, are premises claims against the marina under its liability coverage.

A boating claim is a negligence claim against the operator, the owner, a business or a manufacturer, under state law or maritime law depending on the water, with coverage that must be found because operators are rarely required to carry it, and with a limitation of liability action to contest on navigable waters. The questions to answer early are who operated and owned the boat, what water it was on, what insurance exists, and whether alcohol was involved. Attorneys who handle boating cases work on contingency.

Ask Legal Matters is a free claim-review request service, not a law firm. Requests may be shared with independent attorneys and legal services partners who handle inquiries in your state, and an attorney must evaluate the facts before anyone can say what the claim is worth. If you were hurt in a boating accident, you can request a free claim review.

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