Are You Responsible for Your Wake?

[JeffS]

Hey there John Doe.

You are very correct - lawyers don't create precedence, they create cases that are ruled on by judges and those rulings create precedence. Sorry for the oversimplification. And it's not a negligence issue. The regs simply state that all boat owners are responsible for damages caused by the wake of their boat, regardless who is in command of the vessel. It doesn't state that boats operated in a negligent way are responsible for damage caused by their wake.

Edited June 19, 2009 by JeffS

[JohnDoe]

Hey there John Doe.

You are very correct - lawyers don't create precedence, they create cases that are ruled on by judges and those rulings create precedence. Sorry for the oversimplification. And it's not a negligence issue. The regs simply state that all boats are responsible for damages caused by their wake. It doesn't state that boats operated in a negligent way are responsible for damage caused by their wake.

No, they don't do that either, but it sounds like you understand.

Jeff, are you saying the the Coast Guard regs apply on every navigable waterway in the country? Or just those within which the Coast Guard has jurisdiction? Or does the Coast Guard have omnipotent jurisdiction?

[JeffS]

Jeff, are you saying the the Coast Guard regs apply on every navigable waterway in the country? Or just those within which the Coast Guard has jurisdiction? Or does the Coast Guard have omnipotent jurisdiction?

USCG only has jurisdiction over federally navigable waterways. Most rivers, the great lakes and coastal waters, sounds, etc. I believe they also have jurisdiction, but currently not a presence, on waterways created and controlled by the US Army Corps of Engineers. I'd have to check on that last one.

The issue with most local laws on waters not-federally-navigable and not under the contrl of USCG - the lawmakers typically start with all USCG regs and then add on from there. So, length of line, distance you can swim from your boat, speed limits, no wake after sundown, idle speed whole lake between 2pm and 4pm on Sundays, where you can launch, powerloading or no powerloading...these are all additional laws enacted by municipalities. They are not part of federal waterway regs. With that said though, I think that very rarely are the basic precepts of maritime law as enforced by the USCG, very rarely are they more flexible on inland lakes.

I can think of one...so there may be others though...on Federally Navigable waters, power boats over 16' are required to carry a combination of incendiary and non-incendiary signalling devices. They are also required to monitor emergency channels on VHF (I think...). I know the requirement for flares and vhf don't apply to the inland lakes where I live - but we carry them because we do boat on Lake Michigan.

The priority of vessels on a waterway, and the reg that a boat owner is responsible for the wake of his/her vessel - that's pretty standard I think. Not to say that there isn't an exception out there...but I wouldn't ever in a million years assume that I was somehow not responsible for the wake of the boats I own.

[Liquidmx]

So my question to you (Jeff) is: By your very logic by simply motoring out of the no wake zone you are now liable for your wake(s) which could now run the length of the lake, river, etc. If in fact anyone on the lake is harmed by your simple movement of a boat (and the resulting wake) you are liable (even though that is what the lake was/is designed for). So when anyone pulls out of a no wake zone they are now liable for the next several hours until the rollers from their boat has dispersed? For example, I am 1000's of yards away (beyond sight and sound) and proceed to drive a double up at the very moment your rollers arrive from your leaving the 5 mph zone. I land and blow my knee out on in the pit between one of those rollers and establish that it came from your boat. Your okay with paying my medical bills for that? That seems logical, just and right? Sorry, I disagree and at SOME point a boater is responsible for the inherent danger associated with boating...including the waves that may be created.

John Doe, check out Overlawyered.com there is tons of stuff on that site about the litigious society we live in.

[JeffS]

LiquidMX - you could make a claim against me...sure. And you could cite the reg that I'm responsible for my wake. The defense of that claim would lean toward you...participating in a sport with inherent dangers and risks...yada yada yada.

The law isn't there to protect your knees while you flip and gyrate on board at the end of a rope attached to a recreational motor boat - it's there to protect the docks, shoreline, property, life and boats of craft that are farther up the food chain in priority. You are the lowest priority. Absolutely the lowest. Recreational motorized vessels - it doesn't get any lower than that on the priority scale. I totally get that you don't like it. I just want you to realize you are bound by it regardless.

[edit]...oh...one other thing. It's not my logic that creates this reg. It was there long before I ever took the wheel a couple of decades ago.

Edited June 19, 2009 by JeffS

[JeffS]

Here it is - from USCG.gov website.

Regarding one's wake, vessels over 1600 Gross Tons are specifically required by Title 33 CFR 164.11 to set the vessel's speed with consideration for...the damage that might be caused by the vessel's wake. Further, there may be State or local laws which specifically address "wake" for the waters in question.

While vessels under 1600 GT are not specifically required to manage their speed in regards to wake, they are still required to operate in a prudent manner which does not endanger life, limb, or property (46 USC 2302). Nor do the Navigation Rules exonerate any vessel from the consequences of neglect (Rule 2), which, among other things, could be unsafe speeds (Rule 6), improper lookout (Rule 5), or completely ignoring your responsibilities as prescribed by the Navigation Rules.

The nav rule specifically states that determinations of responsibility are best left to the law enforcement and courts on the state level.

[Liquidmx]

"While vessels under 1600 GT are not specifically required to manage their speed in regards to wake, they are still required to operate in a prudent manner which does not endanger life, limb, or property (46 USC 2302). Nor do the Navigation Rules exonerate any vessel from the consequences of neglect (Rule 2), which, among other things, could be unsafe speeds (Rule 6), improper lookout (Rule 5), or completely ignoring your responsibilities as prescribed by the Navigation Rules."

"operating in a prudent manner" Yah, that's clearly a "black and white" statement. (sarcasm intended).

Further

"Nor do the Navigation Rules exonerate any vessel from the consequences of neglect (Rule 2)" I would place neglect on the boat's captain navigating a vessel into a potentially dangerous area putting themselves, property and others at risk...

Ultimately the reality of all of this is that the boat owner's insurance company would likely settle most suits depending on the severity and monetary implications in a cost/outcome analysis as most do. The issue arises from people filing suit costing the defendant TONS of money even if they were in the right...a sad reality of America.

[JeffS]

Wow...

I guess it's all about you out there.

Have fun - and please don't hurt anyone.

[JohnDoe]

Liquid, I would like to read the opinion of the court that awarded damages to burglar please as you cited earlier. The website you cited is a blog which is edited by an author whose work is funded by tort reform groups (who are funded by the very groups that the civil justice system holds accountable for their conduct). After reading some of the actual opinions, and then reading what the site said the courts said, I don't consider it reliable for accurately reporting on what courts have actually decided. I'd like to read the actual opinion, please. Or did you get your info from that site?

I'm putting my boat away, I'm too scared of litigation now. My idle speed wake might disturb mating patterns of alligators and they could file a class action against us all!

Jeff, do you have a law enforcement background? What do those regs say the sanctions are for violation? Just civil responsibility? IF you are written a ticket by the Coast Guard, so you go to federal court?

Edited June 20, 2009 by JohnDoe

[JeffS]

Hi John.

Law enforcement background...me personally...no. Thank you for asking though.

Very good family friend is a commander USCG from whom we hear dozens of stories...plus I've taken a lot of courses...and will someday get to Sea School to finish OUPV 6Pack Captain's license. But mostly, it's just the family friend sharing stories and allowing me to ask questions and get very specific, accurate answers.

And that I know of, there's really no violation unless there's a damage claim. No harm no foul is the general rule I guess. Fill your ballast tanks and boat through a rowing regata because you were there first though...that will very likely get a citation for unsafe operation. And yes to civil responsibility. The law is such that a person making a claim only need cite the reg to prove responsibility on the part of the boat owner. It eliminates all the yah-butt arguments. Especially - "I was there first". The biggest lesson that folks can learn from this thread is that recreational power boats are the lowest priority vessel on the water. Every one takes priority over us. It is what it is.

Last question - violations on the water, observed and called by USCG - to my knowledge are mostly handed over to local law enforcement. Even a BUI - the CG will board and test - end the cruise - and deliver the drunk operator to the sheriff.

[JeffS]

Decided to grab the book and look up the specific wording of vessel priority. Here they are.

1. Not under command - a vessel which, for whatever reason, cannot control where it goes.

2. Restricted in ability to maneuver - a vessel which, because of the tasks it is doing, cannot change direction or speed easily, or at all.

3. Constrained by draft - a vessel which must stay away from shallower water to avoid running aground.

4. Vessel which is fishing or trawling (but not trolling).

5. Sailboat under sail or a boat being paddled or rowed - though as soon as the sailboat uses an engine for power it must follow the same rules as a power boat, whether or not it has sails up.

6. Power.

[Tom Sawyer]

If we followed the "letter of the law" nobody would ever get to wakeboard because of situations like this.

Or do any other watersports activity in a place where any given person doesn't want you to. The fact is that anyone can use the law to dictate to you whether or not you can use your Bu. Making people aware of this is the reason I posted this thread.

politely ask - "we've been here a couple of hours, and are taking advantage of the water conditions. We'd like to keep going for another hour or so but our wake might endanger your vessel. May we continue? Or can you come back to this cove in an hour or so?" I think you might be blown away at how far that kind of courtesy will get you.

Where do you boat? Pleasantville? Don't get me wrong, I agree that this is how people should conduct themselves with one another, but if you try this in my cove, you might end up being blown away in a different sense. Seriously, the drunk, belligerent, drug using, FU type of riff raft that I'd rather my family wasn't exposed to seem to increase ten fold every season.

Here it is - from USCG.gov website.

Regarding one's wake, vessels over 1600 Gross Tons are specifically required by Title 33 CFR 164.11 to set the vessel's speed with consideration for...the damage that might be caused by the vessel's wake. Further, there may be State or local laws which specifically address "wake" for the waters in question.

The USCG has one H of a problem with enforcement of this on inland waterways. In fact, there is talk of spending millions in federal money on expanding the lock and dam system to allow for more and larger barge traffic. If these guys had to be concerned about the water they displace (and I can assure you that they're not), they're cargo would never reach it's destination.

Sometimes the law defies common sense (or at least the common sense of approx. 80% of Bu owners). It defies what happens in practice as well.

Edited June 23, 2009 by Tom Sawyer

[Bjrz]

I believe the law is 200 feet. That's what the Sheriff told me on the river. I can have as big a wake as I want, so long as I make it more than 200 feet away from a boat tied to a dock (assuming it's NOT a no wake). However, if a Sheriff is tied to another boat, it's No Wake no matter what. again, this is coming from a Sheriff on the Sacramento River in Sacto, CA.

http://www.boatus.org/onlinecourse/statela...rnia.html#speed

The maximum speed for motorboats within 100 feet of a bather and within 200 feet of a bathing beach, swimming float, diving platform or lifeline, passenger landing being used, or landing where boats are tied up is 5 miles per hour.

The distance is different in many states. For New Hampshire it's 150 from shore and pretty much everything else. Make sure you know what the law is in your own state. As long as you maintain these distances you shouldn't be held accountable for your wake. That's part of why the law was made to begin with.

[Liquidmx]

Speaking of large vessels constrained of draft...Can someone lend some insight if this is this why most of the boats in the Norcal Delta who get swamped (and sink as a result) in the main channel(s) (due to large vessel waves) rarely receive any sort of reimbursement for their losses? I am just curious since every summer several boats go down due to the ridiculously large roller's these yachts/ships create. Are these boats exempt from the damage their wake causes to power vessels?

Maybe its just different in the Norcal delta but I have had some seriously scary situations where regardless of what the law was it was clearly on me to keep myself and my friends safe? Anyone else been buzzed by an offshore race boat doing 80+ by less than 50ft while you sat in the water helpless?

[JeffS]

If a boat on the NorCal delta is swamped by a yacht's wake - maritime law says the owner of that yacht is indeed responsible for the damages. Now...if that yacht hails from and is flying the flag of a foreign country - collecting might be an interesting legal issue.

They just need the vessel name and hailing port. Once swamped, one would assume they'd be on the VHF issuing either a Pan Pan urgent message or a Mayday. And if they receive a response from USCG - they should report - "this is the motor vessel yada yada, a 23' [brand] pleasure boat with blue hull and white topsides - I was just swamped by the wake of the Motor Yacht [name], hailing from [marina]. I'm in urgent need of assistance."

And voila. Once the coast guard responds - the message is recorded and the issue is open.

And if you do get buzzed by a Go Fast Be Loud at 80mph only 50' away, get their vessel name and hailing port (or at least a good description...unique graphics are the norm on those things) and call the USCG immediately. They don't have a sense of humor that they know of...and are not particularly friendly to Go Fasts tearing it up near other boats.

[MR. BU]

Wake zone or no wake zone, tie your boat up for max protection, you never know!

Well said prepare for anything you never know what can happen you don't spend all that money to let it go to waist due to simply being lazy on securing you boat properly.

[WakeGirl]

Just as a point of interest, I was searching on the Oregon Marine Board's site & came across this: LINK

If a skipper operates his boat in a way that damages or is likely to damage private property or cause injury, ORS 830.305 clearly states it as a citable offense. At $720, it’s a significant fine, too. We will be looking for violations this boating season, so be warned.

Yikes! That's significant alright. And it's not black & white, being completely up to the interpretation of the officer on the scene.

Jeff, do you know if there is a measurement of how far you are responsible for? Like a maximum distance or something?

[JeffS]

In theory - no max distance. The way the reg is written - you are just simply responsible for your wake.

"Operate in a prudent manner which does not endanger life limb or property."

And then there's the priority of vessels written into the USCG Rules of the Road.

Power recreational craft are the lowest on the scale. So that makes us the most vulnerable to the whim of others. Especially those with no fenders, tied up with clothes line, and carrying a good set of binoculars.

Regarding distance limits - wake energy dissipates as it travels. So I guess there's a natural limit.

Edited June 24, 2009 by JeffS

[WakeGirl]

There is a natural limit, I would definitely agree with that. Add to that a large lake that is busy.....do you see where I'm going with that?

[JeffS]

Hi Wakegirl.

Yep - totally see where you are going. Here's where I have to fall back to my opinion if that's ok.

In my opinion...let's just use the family of 4 out fishing in their 14' jon boat as an example...

If they putter into a cove that is otherwise calm, kill the motor and cast lines (they now have priority over a power boat)...and you round the bend throwing a ballast engorged wake pulling someone on a board...

If it were me...I'd shut it down as soon as I saw the fishing boat.

From the wording of the reg, andwhat I've been taught, and what I've been told by very reliable folk - if I swamp that boat or cause injury on that fishing boat, or throw someone overboard...I have a big problem on my hands.

Now - put that Jon Boat in the middle of the main part of a busy lake where combined boat traffic is generating a confused chop that is climbing to over 2' some sunny afternoon - the owner or operator of that fishing boat would be prudent to get off that lake. In that case - water conditions (albeit created by the increasing overall traffic)...the overall water conditions...they are getting too dangerous for a prudent operator to drive a low freeboard jon boat. If he takes a wave over the bow, it would be a big stretch for him to look around the lake and take down the first 5 registration numbers and claim they were responsible for the overall lake conditions.

This is all just my opinion though.

[WakeGirl]

Exactly. In your first scenario, I'd either shut it down or make a turn to go back the other way depending on the situation. In the second, it's going to be tough to argue wake responsibility even if you could point to an exact boat as the one whose wake swamped you. So with regard to interpretation of the law, I would think/hope that those factors would be taken into account if it ever reached a judge.

[Liquidmx]

The sad part about the second scenario is even if you won the court case you still lost since you just spent tons of money defending yourself (depending on your boat insurance clauses regarding covering your legal defense(s)). That is really where the whole "black and white law thing" drives me crazy. Even if you win you lose because America is slowly rewarding the illogical people who file erroneous claims due to their stupidity. Case in point... the recent crunch berries claim that was dismissed. Even though the defendant won...they easily spent $10,000+ in lawyer fees simply defending themselves.

http://www.loweringthebar.net/2009/06/reas...udge-rules.html

[JohnDoe]

The sad part about the second scenario is even if you won the court case you still lost since you just spent tons of money defending yourself (depending on your boat insurance clauses regarding covering your legal defense(s)). That is really where the whole "black and white law thing" drives me crazy. Even if you win you lose because America is slowly rewarding the illogical people who file erroneous claims due to their stupidity. Case in point... the recent crunch berries claim that was dismissed. Even though the defendant won...they easily spent $10,000+ in lawyer fees simply defending themselves.

http://www.loweringthebar.net/2009/06/reas...udge-rules.html

Not necessarily. A primary purpose of insurance is to provide your defense...so, read your policy and buy the appropriate coverage. Some states allow the winning party to recover their fees and expenses under many scenarios (even for the insurance company, if they were providing the defense).

As to berry case, where did you get those #'s from? I read the case and didn't see any numbers. First, Pepsi has an army of attorneys that they gladly pay handsomely (and would be working on something else anyway). Secondly, it was dismissed following a 12(B)(6) motion. In other words, there was minimal litigation. Thirdly, many states allow the winning party to recover their attorneys fees as mentioned above.

Interesting places from which you get your info liquid. The first blog you cited was/is funded by tort reform groups and this one is written by a product liability and consumer protection defense lawyer. Are there borderline cases that get filed every now and again, sure, but they get dealt with and dismissed. The vast, vast majority are all legitimate. Feeding the paranoia of frivolous claims is mostly due to incomplete reporting, especially by groups with an agenda. Please see my previous posts above, I'd like to see some links for some of your other referenced "cases". Hopefully, the source alos provides the link to the actual opinion.

The bottom line is use your boat responsibly. If everyone did that it would be unlikely that anyone would have to worry about their safety or liability. But that won't happen. Some boaters will claim their entitlement to ride on calm water no matter who was there first and buzz docks and other boats too closely, so unfortunately there has to be a framework for dealing with the problems that irresponsible usage creates.

Edited June 24, 2009 by JohnDoe

[Liquidmx]

John quite honestly I posted up the first thing(s) I found on the net (google) as it related to emails some attorney friends commonly send me. Due to my profession I am pretty tight with quite a few attorneys (D.A's, litigation, estate, Tax, etc.) here in the Bay area. I am sorry if I let you down you by not spending more time substantiating the cases I can remember being told about. If your taking the stance that there are not that many frivolous cases, suits, etc.; that's your choice. Again, I wish I could cite many of the other cases I am frequently told about, but hey, I prefer to spend my free time in other ways than researching things on the net just to prove someone wrong. As far as #'s, I am assuming your referring to the $10k amount. Around here, the general retainer is a $5k minimum for an individual and business are usually substantially more depending on the situation. Assuming their (pepsi) legal counsel was in house that's a whole different story but if you think lawyers work for free your sadly mistaken. Yes they probably already had attorneys in house, but the filings, paperwork, etc. all took time away from other projects which they pay for indirectly.

Your right, the legal framework is there for irresponsibility, we just have a gross difference in opinions as to what irresponsibility is.

[JohnDoe]

Your right, the legal framework is there for irresponsibility, we just have a gross difference in opinions as to what irresponsibility is.

We do? I haven't even commented on what is or what is not responsible behavior, have only pointed out that your examples of frivolous cases are dealt with appropriately by the system, the non-objectiveness of your authorities, and have asked for citations to read about the incidents that you're using as evidence of a country gone sue happy. I would actually bet that we would be in agreement as to who should be responsible for incidents the vast, vast majority of the time, as would most in this country, along with the courts and lawmakers.

I'm glad the boating laws are the way they are on the books. Encourages people to operate "responsibly".

Edited June 24, 2009 by JohnDoe