Filled to Capacity
Q: Carrying 47 passengers and 1 crew member, our tour boat capsized and sank. The boat had been subject to yearly state inspections. It was forty-one years old. At age 25, the boat’s canvas canopy had been replaced with a wooden one. Both before and after this modification, the passenger capacity was consistently rubber-stamp certified at 48 persons.
A: Seemingly, your attorney could claim that the State had been negligent in certifying an unsafe passenger capacity, resulting from the use of outdated passenger weight criteria, and in failing to require a new stability assessment after the boat had been significantly modified. However, the State is virtually certain to defeat any such claim with a defense of governmental immunity.
Although there is indeed a statute mandating yearly state inspections, our courts have held that it does not create a special duty of care owed by the State to particular passengers. Rather, the statute is intended broadly to protect all members of the public in general. Our courts have held that a private right of action – of the passengers against the State – is incompatible with a legislative design that is aimed at protecting the public in general.
The navigation law does not provide for governmental tort liability, but instead for fines and criminal penalties to be imposed upon boat owners and operators. Against the State, you appear to have no claim. However, to the extent that the boat carried marine protection and indemnity insurance, you seem bound to succeed, when suing the owner and operator for negligence.
By: Scott Baron,
Attorney at Law Advertorial
The law responds to changed conditions; exceptions and variations abound. Here, the information is general; always seek out competent counsel. This article shall not be construed as legal advice.
Copyright © 2013-2020 Scott Baron & Associates, P.C. All rights reserved. 159-49 Cross Bay Boulevard, Howard Beach, New York 11414 1750 Central Park Ave, Yonkers, NY 10710 718-738-9800, 914-337-9800, 1-866-927-4878