NYCkayaker question on liability of water taxis

Fri Jun 1 12:00:34 EDT 2007

NYCKayaker,
    Tom raises a good question, "why not ask them?" Mike, however, 
adopts a less than positive approach ("They probably will not tell you 
or lie.") when seeking the answer on the issue of liability.

    Repeating what I wrote back channel, when I was in law school many 
years ago I took and enjoyed a Maritime Law class. It was all good fun, 
but not anything that would keep me going for the rest of my career. It 
definitely is a niche area.

    Do you want some basic info about ferryboats? Take a look: 
http://www.apta.com/research/stats/factbook/documents/fb.pdf    That is 
from the American Public Transportation Association web site.

    So, let's all focus for a moment and use the Staten Island Ferry 
crash as a model for the discussion. The City of New York was a 
defendant in the litigation that ensured. It attempted to limit its 
liability for any and all damages to the value of the vessel. It was a 
defense based upon an 1851 law. So, Mike is correct that some laws are 
"old." But, the effort was defeated. Please take the time to read the 
decision of Judge Edward Korman. After all the pixels spilled on this 
topic and the likelihood of many more we certainly can work through a 25 
page decision. 
http://www.nyed.uscourts.gov/Decisions_of_Interest/03cv6049mo22607.pdf 

    If you want a newspaper's interpretation of that decision then you 
might wish to reconsider the New York Times' story. 
http://www.nytimes.com/2007/02/26/nyregion/26cnd-ferry.html?ex=1180843200&en=7048f2e2ab30b529&ei=5070

    Liability of the water taxi companies. There are two overlapping, 
pretty good articles about criminal prosecutions and the history of the* 
***The* Seaman's Manslaughter Statute. * 
http://www.blankrome.com/index.cfm?contentID=37&itemID=94   - and - 
http://www.blankrome.com/index.cfm?contentID=37&itemID=184

    Insurance. Water taxis do NOT operate without extensive and 
comprehensive insurance policies. Tour vessels are different. (Neither 
New York state nor federal law requires require tour vessels to carry 
liability insurance, said Michael Barry, a spokesman for the New York 
State Insurance Department.)  I believe that the suggestion is mistaken 
that water taxis may be on the water, commercially carrying passengers 
in navigable waters without insurance in place. So, if this bugs anyone 
then I encourage you (a) ask, or (b) send a Freedom of Information Act 
request.

    Kayakers must consider a couple of legal concepts if they intend to 
be run over by a water taxi. There is a concept of "assumption of the 
risk" where the activity (kayaking) is inherently dangerous. Low on the 
water; in a shipping channel; limited visibility to other vessels; 
unscheduled travels, etc.. Anyway, there are maritime law firms that 
specialize in this type of litigation. e.g., 
http://www.1800jonesact.com/  - or - 
http://maritimeinjury.vbattorneys.com/promo/services/    (loaded with 
links to various issues and the law). 

    A second concept is contributory fault. This involves a circumstance 
or situation where the kayaker is partially at fault. Instances of this 
will involve typically where the kayaker is in violation or breach of 
some particular maritime or navigation rule. It could involve a kayaker 
on the water at night without proper lighting or flotation deice (e.g., 
not wearing a  PFD during the Summer).

    Here is a snippet from the Mass Tort Litigation Blog. 
http://lawprofessors.typepad.com/mass_tort_litigation/2007/02/staten_island_f.html

      Staten Island Ferry Case

The Staten Island Ferry crash of 2003, in which eleven passengers died 
and many others were injured, led to numerous wrongful death and 
personal injury claims against New York City.  Many of the claims have 
settled, but others remain in litigation.  The city has contended that 
under federal maritime law (specifically, the Limitation of Vessel 
Owner's Liability Act), its liability is limited to the value of the 
ship.  Today, Chief Judge Edward Korman of the Eastern District of New 
York ruled against the city on this critical issue, finding that the 
failure to enforce a two-pilot rule (requiring that two captains be in 
the front-facing pilot house while the ferry is in motion) was 
negligent.  Judge Korman's opinion 
<http://www.nyed.uscourts.gov/Decisions_of_Interest/03cv6049mo22607.pdf> 
-- with an extensive negligence analysis citing such classics as U.S. v. 
Carroll Towing, The T.J. Hooper, and McCarty v. Pheasant Run -- belongs 
in a Torts casebook.  A New York Times article -- N.Y. Can't Limit Ferry 
Crash Damages, Judge Says 
<http://www.nytimes.com/2007/02/26/nyregion/26cnd-ferry.html?_r=1&hp&oref=slogin> 
-- reports on the decision:

    A federal judge today rejected New York City's attempt to use an
    obscure 19th-century maritime law to cap its liability in the 2003
    crash of the Staten Island Ferry at $14 million.

    The ruling exposes the city to tens of millions of dollars in damage
    awards to relatives of those killed and to scores of people injured
    when the boat, the Andrew J. Barberi, crashed into a maintenance
    pier at the Staten Island ferry terminal.

    The city had argued that the accident was covered by an 1851 act,
    aimed at encouraging investment in the shipbuilding industry, that
    limited a boat owner's liability to the value of the boat minus the
    repair costs -- in this case $14.4 million.

    The city has already paid out $27.6 million to settle two-thirds of
    the 186 damage claims. Of the 11 people killed in the crash, the
    estates of only two have settled with the city, for $3 million and
    $450,000.

    The amounts of many settlements were held down, lawyers for the
    plaintiffs said, by the city's argument that if it succeeded in
    capping the liability, the plaintiffs stood to win relatively little.

    ...

    Judge Korman wrote: "The blame for this laxity lies squarely on the
    shoulders of the city." The 1851 act limiting liability, he added,
    does not apply when the negligent parties include supervisors.

   Plenty to work with if anyone is so inclined.  Best wishes, Richard 
Clifford

*Richard C. Clifford, Esq.*
Attorney at Law
1890 Palmer Avenue, Suite 302
Larchmont, NY 10538

Tel: (914) 834-0100 -or- 0757
Cell: (917) 854-5824
Fax: (914) 834-0888

RichardClifford at earthlink.net 
RichardClifford at NYSBar.com

mike wrote:

>They probably will not tell you or lie.  NYS law dictates how much
>liability a automobile is required to have. There may not be any law
>requiring liability insurance in case of collision for the water taxis. 
>Marine law can be outdated, as in the Staten Island ferry crash, they
>were trying to limit their liability to a small monetary sum for all the
>inured and dead per marine law.
>  
>
>>>-----Original Message-----
>>>From: nyckayaker-bounces at rockandwater.net [mailto:nyckayaker-
>>>bounces at rockandwater.net] On Behalf Of TomBrooklyn
>>>Sent: Thursday, May 31, 2007 12:47 PM
>>>To: nyckayaker at rockandwater.net
>>>Subject: Re: NYCkayaker question on liability of water taxis
>>>      
>>>
>summary of rules]
>  
>
>>>Oh.  Why not ask them?   :)
>>>
>>>I sent them a message from the contact point on their webpage asking
>>>      
>>>
>them
>  
>
>>>what insurance limits
>>>they have in the event of a collision.    I'll let you know how they
>>>respond, if they respond.
>>>
>>>TomBk
>>>      
>>>
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