Accident victims are often unsure whether they have any rights under the law. Here, Miami injury attorney John H. (Jack) Hickey talks about a recreational boating accident that occurred in 2010 and describes how the law would apply to the accident victims.
If you have been hurt in a recreational boating accident or if you lost a loved one to such an accident, call the Miami and Fort Lauderdale injury lawyers at Hickey Law Firm, P.A. at 305-371-8000 right away for a free consultation.
On Monday, November 29, 2010, approximately 1 mile East of Matheson Hammock Park/Marina, two catamaran “go fast” boats collided. The result of this collision is that two men are dead and one is in critical condition at Jackson Memorial Hospital. The two men who died include Steven Posner, 67 years old, a well-known Miami Beach real estate mogul. Mr. Posner was the eldest son of corporate raider Victor Posner, formerly of Miami Beach. The other deceased is Clive Warwick, 60 years old, who was also on Mr. Posner’s boat.
The two recreational boats apparently collided at a high rate of speed. This accident is under investigation by the Florida Fish and Wildlife Conservation Commission. The Conservation Commission is investigating whether the boat owners and/or operators knew each other and whether they were racing or engaged in horseplay. “They may have side-swiped each other,” says Jorge Pino, Florida Fish and Wildlife Conservation Commission spokesman.
Others on board these boats may have suffered personal injuries. The 27-year-old, Friedrich Eigelfhoven, was on the boat adjacent to Posner’s boat. Mr. Eigelfhoven was taken to Mercy Hospital and treated for injuries there. Mr. Posner’s cousin, Stuart Posner, was onboard Posner’s boat and airlifted to Jackson Memorial Hospital. He was in critical condition after the accident. He suffered personal injuries, but ultimately survived the crash.
I am a boater and know this area of Biscayne Bay extremely well. When I was growing up in Miami, we used to go out on boats around Matheson Hammock. This area is basically the middle of Biscayne Bay. It is an area that is approximately 3 to 15 feet deep. It sometimes does have a slight chop. It is also an area popular with “go fast” boats because it is right off the land and there are stretches where you would not come into contact with either land or other boats.
Rights and Remedies Under Maritime Law
As a maritime injury and admiralty lawyer who has practiced law for 30 years, I can analyze the remedies available to the families of the deceased and to the injured individuals. First, maritime law does apply to this accident and to the damages recoverable. If I were advising the families of the deceased or the injured individuals, I would urge them to retain a maritime lawyer. Whether you call me or someone else to represent you, again, you absolutely should retain a maritime lawyer. That is because maritime law, also known as admiralty law, applies. It takes a seasoned admiralty or maritime lawyer to understand the ins and outs of this law, not only as it applies to liability, that is, who is at fault, but also as it applies to damages.
In regard to liability, the rules of the road for recreational boats apply. There are rules as to which vessel is to give way to the other vessel. That is the same concept as yielding to the right of way on land.
In regard to damages, because this accident happened within 12 miles from shore, the Florida Wrongful Death law would apply. The Death on the High Seas Act, a federal statute limiting damages severely in certain maritime actions, would not apply. There are other aspects of admiralty or maritime law which would apply. For example, the law of collateral sources under admiralty law is different than in state law. For example, in admiralty or maritime law, all medical expenses come into evidence. Under the state law on collateral sources, all of the expenses do not necessarily come into evidence.
The insurance companies for the boaters will retain maritime or admiralty lawyers for this marine accident. Maritime lawyers on the defense are well known in this community. I used to represent insurance companies and P&I clubs in such accidents. In going against seasoned, experienced maritime lawyers, you need a maritime plaintiff’s attorney.
Wrongful Death Law
Again, the wrongful death law in Florida applies. That law can be found at Fla. Stat. Sec. 768.16 et seq. That is also referred to as the “Florida Wrongful Death Act.” Under that Act, “survivors” are entitled to benefits. It is the personal representative of the estate of the decedent who actually can act as the plaintiff in a lawsuit.
The “survivors” include “the decedents spouse, children, parents, and when partly or wholly dependent on the decedent for support or services, any blood relatives or adoptive brothers or sisters. It includes the child born out of wedlock of the mother, but not the child born out of wedlock of the father unless the father has recognized a responsibility for the child’s support.” (Fla. Stat. Sec. 768.18(1).)
Under the Florida Wrongful Death Act, “minor children” means a child less than 25 years of age, notwithstanding the age of majority. In other words, any child who is under 25 years of age can be entitled to benefits as a “survivor.”
“Support” under that statute is defined as contributions in kind as well as money. That means that a blood relative that received in-kind contributions is a “survivor.” In-kind contributions would include picking someone up and taking them to the grocery store, for example. That is a contribution that is not money but it is a contribution nonetheless.
“Services” is defined in the Florida Wrongful Death Act as “tasks, usually of a household nature, regularly performed by the decedent that would be a necessary expense to the survivors of the decedent. These services may vary according to the identity of the decedent and survivor and shall be determined under the particular facts of each case.”
The estate is entitled to the “net accumulations.” That means “the part of the decedents expected net business or salary income, including pension benefits, that the decedent probably would have retained as savings and left as part of her or his estate if the decedent had lived her or his normal life expectancy. Net business or salary income is the part of the decedent’s probable gross income after taxes, excluding income from investments continuing beyond death, that remains after deducting the decedent’s personal expenses and support of survivors, excluding contribution in kind.”
Damages that are recoverable for each survivor of a maritime wrongful death claim vary according to the type of survivor. Under the statute, “each survivor may recover the value of lost support and services from the date of the decedent’s injury to his or her death, with interest, and future loss of support and services from the date of the death and reduced to present value.”
The surviving spouse may also recover for loss of the decedent’s companionship and protection and for mental pain and suffering from the date of injury. Minor children of the decedent and all children of the decedent if there is no surviving spouse, may also recover for lost parental companionship, instruction, and guidance and for mental pain and suffering from the date of injury.
Medical or funeral expenses due to the decedent’s injury or death may be recovered by a survivor who has paid them.
The personal representative may also recover for the estate loss of earnings of the deceased from the date of injury to the date of death, less lost support of survivors excluding contributions in kind, with interest.
The people injured in this recreational boating accident or marine accident can recover from what is called economic and non-economic damages. Economic damages include medical expenses both past and future. Economic damages also include lost wages or income in the past as well as the loss of ability to earn income in the future.
The injured, as in any personal injury lawsuit, can recover for non-economic damages. These include under the maritime law and under Florida law pain and suffering, mental anguish, loss of enjoyment of life, disability, disfigurement, and scarring, both past and future.
Limitation of Liability
You may have heard about the Limitation of Liability Act. The Limitation of Liability Act is federal law located at 46 USC Sec. 183. This is a draconian, outdated federal statue which limits the liability of a boat owner to the value of the vessel.
The most common limitation or exception to the Limitation of Liability Act is the privity or knowledge of the owner. In other words, under section 183 (a), if the owner of the vessel had knowledge or participation in the negligence which caused the accident, the limitation will not apply.
In this case, it appears that the owners of the vessels certainly had knowledge of what was going on. If the owner of the other vessel was not on the vessel at the time of the accident, he or she may have liability without a limitation of liability if they negligently entrusted their boat to someone else.
Last summer, the American Association for Justice (AAJ) and the Admiralty Law Section of AAJ, of which I am chair, and many others, attempted to get through Congress a change to the Limitation of Liability Act as well as the Death on the High Seas Act. The push for these changes came about as a result of the gulf oil spill. In the Gulf oil spill, as you may recall, the Deep Water Horizon, an oil platform that is considered a vessel, exploded and killed 11 men. It would be unjust for BP or any of the other defendants to hide behind the Limitation of Liability Act and to have to pay to the families of those 11 men only up to the value of that “vessel,” that is, the oil platform. Unfortunately, Congress did not change either the Death on the High Seas Act or the Limitation of Liability Act. It appears that the newly elected Congress may not pass these changes as well.
The Limitation of Liability Act allows the shipowner to file an action in federal court. Under the procedures of the Act, the federal court assumes or takes jurisdiction of not only the claim of the shipowner that it is entitled to “limitation,” but also the personal injury action itself. This is called concursus. This also is an antiquated, outdated procedure. In any event, under these procedures, the personal injury action filed in state court against the owners automatically stays.
In this case, the cruise line raised the limitation of liability because the accident happened on a jet ski. They say that the damages are limited to the value of the jet ski. The injuries are of a permanent nature and, thus, the value of these injuries far exceeds the value of the jet ski. However, the so-called fleet doctrine says that if the person injured on the vessel was actually part of or worked on a fleet of vessels, the limitation of liability would not apply.
The procedures for filing a limitation action are contained in Rule F of the Federal Rules of Civil Procedure, supplemental rules for certain admiralty and maritime claims. Rule F also contains venue provision which governs in which court the action may be commenced. The limitation action must be commenced within 6 months of the date of which the shipowner received written notice of a claim arising out of the incident. The case will be dismissed if it is not filed on a timely basis. If the action is filed initially in state court and no limitation action is filed, the limitation defense is not available to the defendant. If the action is filed in federal court, the limitation is available as an affirmative defense.
What we have done in the past is to enter into a stipulation such as in the Ziegler vs. Royal Caribbean Cruise Line, in which we can pursue the state action. The following is that stipulation:
- That the Petitioner, ROYAL CARIBBEAN CRUISES, LTD., has the right to litigate the issue of whether it is entitled to limit its liability under the provisions of the Limitation of Liability Act, 46 U.S.C. §30501 et. seq., in this Court, and this Court has exclusive jurisdiction to determine those issues.
- That the Petitioner has the right to have this Court determine the value of the vessels identified in its petition immediately following the incident at issue, and this court has exclusive jurisdiction to determine that issue.
- That the Respondent/Claimant will not seek a determination of the issues set forth in paragraphs (1) and (2) above in any other court and consents to waive any res judicata or issue preclusion effect which the decisions, ruling, or judgments of any other court might have on those issues.
- The Respondent/Claimant will not seek to enforce any judgments rendered in any other court, whether against the Petitioner or any other person or entity that would be entitled to seek indemnity or contribution from the Petitioner, by way of cross-claim or otherwise, that would expose the Petitioner to liability in excess of $6,950 (or such amount as this Court ultimately determines is the value of the vessels involved) until such time as this Court has adjudicated the Petitioner’s right to limit that liability.
We recommend that you retain an admiralty or maritime attorney who is experienced on the plaintiff’s side. That is, admiralty or maritime attorneys who represent boat owners, insurance companies, P&I clubs, and/or cruise lines are not appropriate to represent plaintiffs in such actions (plaintiffs are the injured parties). The reason for that is that there can be direct or indirect conflicts of interest. When an attorney also represents insurance companies or even boat owners in other cases, they may not represent plaintiffs in this kind of case with the same zeal which they should.
We are uniquely qualified to represent individuals in this or any other recreational boating accident, maritime accident, or marine accident in regard to personal injuries or wrongful death. I am a maritime attorney and have been for 30 years. I started out by representing the defense interests. This includes insurance companies, P&I clubs, and cruise lines. Approximately 13 years ago, I switched sides. I absolutely do not represent insurance companies, P&I clubs, ship owners, boat owners, or cruise lines. I am Chair of the Admiralty Law Section of the American Association for Justice. I am past Chair of the Admiralty Law Committee of The Florida Bar.
Further, I grew up on Biscayne Bay. I was on boats and diving in and around Biscayne Bay and have operated motor and sailboats since the age of 13.
Whether you retain us or someone else, we urge you to retain a lawyer who is both a trial lawyer and a maritime lawyer. You need both qualifications in one lawyer. (Certainly, there are other qualifications and experience you should look for as well). I am Board Certified as a Trial Lawyer by both The Florida Bar and the National Board of Trial Advocates. I am also Chair of the Admiralty Law Section of the American Association for Justice and am a Past Chair of the Admiralty Law Section of The Florida Bar.
Recreational boating accidents include accidents involving motorboats (also called motor vessels, speed boats, go-fast boats), sailboats, and personal watercraft. “Personal watercraft” is the generic term that includes the Kawasaki Jet Ski, Yamaha Wave Runner, Yamaha Superjet, Honda Aquatrax, Sea-Doo, Polaris, and HSR-Benelli Runabout and Race Edition Ski. These are motorboats and not toys. They are powerful and injure and kill people every year. Personal watercraft are required to be registered in Florida just like any boat of 10 horsepower or over.
There is a statute in Florida which requires that any facility which rents jet skis should provide instruction. These facilities include the water sports centers and the shack on the beach outside your hotel.
The following are some of the Florida Statutes which can apply to recreational boating and boating accidents:
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