Where To Hire A Boat: September 2013

Monday, 30 September 2013

Boating Accident Law - Will a Limitation of Liability Action Sink Your Boat Accident Case?

by: William Turley

Maritime law is the law of the sea. Maritime law is very, very different from California State law. One of the peculiar parts of maritime law is the Limitation of Liability Act. Under the Limitation of Liability Act, if certain factual prerequisites are met, a shipowner can limit its liability for a accident to the value of their vessel.

Stated differently, if you are seriously injured in a boat accident your recovery may be limited to the value of the boat that caused your injuries. Which, quite obviously, may result in you not being adequately compensated for your serious boat injuries.

The Limitation of Liability Act

The Shipowners Limitation of Liability Act of 1851, ("the Act"), may limit the liability of the owner of a vessel to the value of the vessel. This is a unique maritime principal. The Act limits a vessel owners' liability for claims, arising from acts performed by a ship's crew without the owner's knowledge or privity, to the owners' interests in the ship.

Meaning the value of the boat or ship and its cargo. If the ship's value is insufficient to satisfy all claims, the Act provides for equitable apportionment among the claimants.

Vessel owners must either file a Limitation Action in federal court or raise it as a defense. Vessel owners must file a petition to limit liability in the appropriate federal district court within six months after a claimant notifies an owner of a claim. For purposes of the Act, the charterer of any vessel is deemed to be an owner.

A Limitation Action can literally draw your case into federal court. The proceeding is before the admiralty court. The Act provides for all claims against an owner to be aggregated and decided at one time. It prevents multiple claims against a vessel owner. Limitation actions are equitable proceedings.

"What Does This Mean To My Boat Accident Case?"

As a practical matter a Limitation Action can limit your claim to the value of the vessel that caused your injury. This may not be a problem with a cruise ship. It can be a huge problem with a PWC or a ski boat when there are serious injuries or death. The doctrine is very harsh and unfair. It is usually strictly construed.

The Limitation Act requires strict compliance. A proactive seasoned maritime attorney can sometimes defeat a Limitation Action before it is even filed. One way to defeat a Limitation defense is to marshal the evidence such that you can prove privity of the owner of the vessel. That is, the owner of the vessel knew or should have known of the vessel's dangerous condition that caused the injury.

In a boat collision case, when the owner of the vessel is driving the vessel, then a Limitation Action would not apply in most, if not every, situation. Because the owner would have privity of the way he or she was commanding the vessel.

Limitation of Liability Act Case Studies

Mission Bay, San Diego - Boat Pulling Water Skier Collides With a Fishing Boat

The owner of a ski boat was water skiing while being towed by a friend. The friend was operating the owner's boat. The ski boat was going the wrong way on Mission Bay, San Diego, California. The ski boat was not going in a counter-clockwise rotation. The boat operator was watching the skier and plowed into a small fishing boat, severely injuring three middle aged women.

The ski boat owner filed a Limitation Action. The Action was defeated because the owner of the vessel was being pulled as a skier and he could see that his friend was not following the proper counter-clockwise rotation on Mission Bay. Thus, he had knowledge of the acts that were a cause of the collision.

Mexican Waters - Passenger on a Charter Sportfishing Boat Slips Down Ladder

A passenger on a Charter Sportfishing boat was on a four-day fishing trip to Mexican waters. The passenger slips and falls down a steep ladder into the galley. The Limitation defense was defeated by proving the non-skid on the ladder had been worn smooth for months, if not years, before the passenger slipped on the ladder and was seriously injured. There was plenty of time for the owner to have learned of the dangerous condition before the injury incident. Thus, there was privity (i.e.,knowledge).

Catalina Island, California - Charter Sailing Boat Sinks Due to Electrical Problem

An electrical fire starts on a 54 foot Chartered sailing vessel while cruising off Catalina Island. The Captain and 11 passengers abandoned ship. Two of the passengers drown. Litigation discovery reveals months before the sinking, a mechanic had recommended fixing the electrical problem. The owner had try to conceal both the mechanic and the previous electrical problem. The insurance company settled soon after the concealment was uncovered.

Colorado River - Yuma - 16 Year Old PWC Operator Hits Teen on Inner Tube

A 16 year old is operating a personal water craft on the Colorado River, north of Yuma. The PWC clips a teenage girl floating on an inner tube. The teenage girl is seriously injured. The owner of the Jet ski did not require the 16 year old to read the manual nor the PWC's riding instructions for novices. The owner had given the 16 year old less then 3 minutes instruction on how to operate the PWC before allowing the teenager to ride unsupervised. The insurance company for the owner paid the policy limits.

Conclusion

If you were injured or had a family member killed in a boat accident that occurred in navigable waters you need to expect and plan on having to defeat the Limitation of Liability Act. Your California maritime attorney should be proactive in planning for and defeating the Limitation Act defense.

Disclaimer:

The foregoing is not legal advice. I am simplistic in order to achieve clarity. Your situation may differ from those being described in this article. The foregoing case studies are not meant to represent any particular case or situation. Any resemblance to any actual events or cases are purely accidental.

William Turley is a San Diego Maritime Attorney / San Diego Boat Accident Lawyer. Bill is a Past President of Consumer Attorneys of San Diego and was chosen a 2010 Top 10 Personal Injury Attorney in San Diego. Bill's website is designed for Consumers to research California Boat Accident Law = =>

http://www.turleylawfirm.com/

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Sunday, 29 September 2013

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Piracy 2007

by: Kenneth J McCormick

We have talked about pirates in the past, the fact that pirates are not only still around, but they seem to be on the upswing. There is a lot of pirate activity going on that we never hear about. So much so, that the U.S. Navy has been involved many times. Piracy off of the coast of Somalia and Nigeria is said to have increased this year. We all know that extreme poverty leads people to take desperate measures and this area of the world is extremely poor. This fact has to have an effect on the amount of piracy, because people who are very poor are willing to take greater chances. The U.S. Navy admits that just last week, which is probably about three or four weeks ago by the time this article reaches publication, it sank 2 skiffs that were being used by pirates. I guess a skiff doesn't hold up too well under cannon fire. There was a time when piracy actually abated for a while. That was when the Islamic Council took over Somalia. When they did, they immediately cracked down on piracy. They even went so far as to storm a United Arab Emirates registered ship that had pirates on board. A gun battle ensued in which many of the pirates were wounded, but none of the ship's crew. Ethiopian forces overthrew the Islamic militants and the Pirates resumed business as usual.

I don't know how many of you have read about the pirate incident off the coast of Somalia, where pirates and North Koreans fought it out? That was a recent event. The destroyer USS James E. Williams came to the aid of the North Korean sailors who had taken back control of the ship. We assisted by taking care of the wounded and bringing them to the James E. Williams for medical treatment after which they were returned to their own vessel. The Pirates remained in captivity on the North Korean ship. When the US was asked about the frequency of pirate attacks, the answer was that pirate attacks are not rare. I think we can interpret this statement to mean that there are far too many of them. The North Koreans had killed one pirate and wounded three others, while suffering three wounded sailors. Here is what we are told took place. We received a tip that a hijacked ship was in the area of the destroyer. A helicopter was dispatched that flew over the hijacked ship and demanded that the pirates give up their weapons. At that point the crew of the North Korean ship, called the Dai Hong Dan, made their move and overwhelmed the Pirates.

How did the Pirates get onto the North Korean ship in the first place? Did they use the traditional method of sailing up alongside, boarding the ship and then taking it over? No they didn't even have a ship. They used a much more modern method and a very sneaky one at that. What the Pirates did was hire themselves out as security guards on the ship, wait for it to sail and then take it over. It may not have been as dramatic as methods used by pirates in the past, but it worked just as well. They did gain control of the ship and who knows, maybe if they had more men they would have been successful? So far this year there have been 26 attacks on ships in Somali waters. Last year there were eight. This seems to indicate that while attacks jumped 14% worldwide, they have risen over 300% in this area. I would suspect that this is not a good area for those passenger liners to go into. Did you know that some of them now carry a type of sound Cannon? It can be aimed and shot at attacking pirates and supposedly the sound that comes out of it is so devastating that pirates have to turn back or have their eardrums ruptured.

There is actually a satellite map that lists areas where pirate attacks take place. It lists actual attacks and attempted attacks. In 2007 the most dangerous areas in the world were: Indonesia, Somalia, Nigeria, Bangladesh and Tanzania. The list is in order of severity. Notice that Somalia is not even number one on the list. In 2007 we have had pirate attacks off the coast of Florida and Cuba, along the top of South America, along the western coast of Africa and also the eastern coast, near the Arab states and near the southern tip of China, just to mention a few areas. The United States has been relatively free of piracy in its waters, along with Russia. There are a lot of pirate attacks between Indonesia and Thailand. Australia and New Zealand seem to be free of the menace. The hot spot in our hemisphere is the coast of Venezuela, but even this does not compare to some areas and the rest of the world. Most of the attacks in Venezuelan waters were carried out upon fishing vessels and I believe one container ship, but I could be wrong. I guess a good load of fish could bring quite a price, but it makes you wonder how far could the Pirates go to get rid of the fish and still keep them fresh. I asked this question, because I think that if they would have shown up in that boat with a load of fish at the local port, they wouldn't have lasted very long. I am not talking about the fish here, I am talking about the Pirates. to see the map of pirate attacks for 2007 just *copy and paste this link into your browser's address bar, http://www.icc-ccs.org/extra/display.php

It is a very strange thing, I told you that pirate attacks are up and yet one website states that pirate attacks are sharply down for the year. Well obviously we have different sets of data that have been used. When things like this happen I just have to wonder how different organizations can get such contrasting figures? When you look at the pirate attack map and see all those attacks, you just have to wonder how they could have gone down? Could it be that only successful attacks are being counted by this organization? My figures include successful and unsuccessful attacks. I always thought that an attack was an attack, could I be wrong on this viewpoint? There are so many pirate attacks off the coast of Somalia that the UN has had to halt aid to that country. This sure doesn't sound like the attacks are lessening to me. The final straw was when a United Nations ship from the world food program was attacked by two speedboats loaded with armed men. It was just lucky that the ship was able to get away. MSNBC is also running a story that says that pirate attacks are up 14% worldwide.

Even though the waters off of Japan seem to be safe from pirate attack, two Japanese ships were attacked in February of this year. The ships were Whalers. Was the attack by Pirates? I guess it depends on how you define that word. The attackers called themselves anti-whaling activists, but they still attacked the ships. You can categorize this attack anyway that you would like. I do admit however that this was a strange attack. Many of the attackers were armed with nail guns which they used to cover drainage ports on the whalers by nailing covers over them. They also threw, what they called, butter acid on the decks of the ships. Needless to say the captains of the whaling ships were none too happy and tried to move their ships away.

In May of this year, Pirates got away with a United Arab Emirates ship and they brazenly unloaded some of the cargo in Hobyo, a Somali Harbor city. They then took the ship to an unknown destination. You just have to wonder how in this modern day and age, we were not able to track it? This just doesn't seem possible. With all the satellites we have up there constantly taking pictures, it would seem like child's play to me, to track any ship anywhere in the world. The ship was a 1000 ton vessel that had a 14 member crew. It was owned by a company in Dubai. Over 90% of all cargo vessels operating in Somali territorial waters are charted from Dubai ports. Five of these vessels have been hijacked in just the past two months. I would like to know what is going to happen when some day a ship carrying nuclear waste is hijacked? It seems to me that it is now time to eliminate all of these pirates and I can't understand why companies haven't banded together and hired some private companies to wipe them out. I do understand that sometimes they sneak aboard ships, but this is why you need professional security on the ships. As far as attacks at sea, I am sure that there have to be companies that have gun boats that can protect the ships. Maybe even a small submarine would do the trick, it wouldn't have to be anything fancy, just something capable of launching a torpedo or two at an incoming speedboat.

The piracy issue is closely tied with the terrorist issue. Doing away with piracy would not only help the companies that are the victims of this piracy, but would also make it safer for the tourists that travel by ship.

Copyright © 2007 by About Facts Net and its licensors. All rights reserved. Permission is granted to reproduce this article if no changes are made and all links, if any, remain intact.

Kenneth J McCormick is the webmaster of About Facts Net ( http://aboutfacts.net ) a popular, free, internet magazine website. The site contains hundreds of articles on all different, interesting subjects, and interviews of interesting people. Most of these are accompanied by photos, video or audio. The magazine is suitable for viewing by the entire family.

Copyright © 2007 by About Facts Net and its licensors. All rights reserved. Permission is granted to reproduce this article if no changes are made and all links, if any, remain intact.