Rules of the Waterway: Boating and Traumatic Injury Claims
By Arthur D. Leritz
May 9, 2011
Spring is a great time for boaters to prepare for a safe and fun boating season.While the unofficial kick-off to boating season here in Washington State started on May 7, 20111 and National Safe Boating Week is May 21-27, 20112, injuries and fatalities from boating accidents happen all year round. In fact, the highest percentage of boating-related fatalities occurs in the winter months.3
Some disturbing statistics:
According to the United States Coast Guard (USCG):
- Nationwide in 2009, 3,358 people were injured and 736 people died in boating incidents. This represents a fatality rate of 5.8 deaths per 100,000, up 3.6% from 2008.
- Of those injured, 18.5% reported broken bones, 5.5% reported internal injuries, 3.2% reported a concussion and less than 1% reported a spinal cord injury.
- Of those who drowned, 9 out of 10 were not wearing life jackets.
- In 2009, 73% of fatal boating incident victims drowned.
- Operator inattention, operator inexperience, excessive speed, improper lookout and alcohol rank as the top five primary contributing factors in accidents.4
- In 2009, Washington ranked 17th in the nation for the number of recreational vessels, with 269,845 registered in the state.5 During that year, 111 boating accidents were reported in Washington to the USCG. Of those, 66 involved injuries and 22 involved fatalities.6 More than $1.2 million in property damage was incurred as a result of these incidents.
Obtain a Boater’s Education Card:
Washington boaters are required by law to take and pass a boater education course and have their education card with them when operating a boat of 15 horsepower or more in Washington waterways. In 2011, boaters’ ages 12 to 35 years are required to carry the card when operating a boat. The law will soon apply to older boaters: In 2012, the age is raised to 40 and in 2013, the age increases to 50. The card requirement is phased in through 2014 (at which point all boaters 59 and younger will be required to have a boater education card). Boaters born before Jan. 1, 1955, are exempt. Washington and Oregon have a reciprocity agreement in place which allows either card to be valid in their state.7
Know the Rules of the “Road”
In addition to obtaining a boating education card, all operators of watercraft are required to follow the “rules of the road,” or rather the rules of the waterways. While most seem like common sense and are similar to the rules for driving an automobile, there are some important distinctions to consider:
- When approaching another boat head on, always “give way” to the right if both boats are powered boats. If one boat is powered and the other is a sailboat, the powered boat must give way. The sailboat shall continue on its course.
- When two powered boats approach each other on a perpendicular or intercepting course, the boat on the operator’s left must give way. If one of the boats is a sailboat, the powered boat must always give way.
- When overtaking and passing a boat, the boat to the rear shall always give way to the boat being passed.
- All boat operators must stop and render assistance to a boat in distress unless doing so would endanger their own vessel or passengers.
- Every boat must proceed with extreme caution and at a safe speed when visibility conditions are restricted.8
- In addition to these rules, some Washington waterways have additional equipment and operational restrictions. Before boating on a particular waterway, check in with the sheriff’s office or police department for local regulations. Local boating ordinances can be found at www.mrsc.org/Codes.aspx.
Know the Law:
If your patient is injured in a boating incident due to the actions of a third party, the same negligence standard applies as it would in an automobile collision. In addition, Washington law defines the following boating practices as illegal:
- Negligent Operation: Operating a vessel in disregard of careful and prudent operation, or in disregard of careful and prudent rates of speed in a manner that unduly or unreasonably endangers the life, limb, property, or other rights of any person, including:
- Not paying attention to the operation of the vessel
- Failing to keep a proper lookout
- Failing to follow the navigation rules
- Causing danger from the effects of the vessel’s wake
- Allowing passengers to ride on the bow (front), gunwales (upper edge of a vessel’s side) or transom (vertical surface at the back of the hull) of a vessel not equipped with adequate railings to prevent a fall overboard.9
- Reckless Operation: Operating carelessly in a willful and wanton disregard of the rights, safety, or property of another person , including:
- Weaving in and out of other vessels, docks or buoys
- Playing “chicken” with another vessel
- Operating in an area marked “No Boats,” i.e. a swimming or dam spillway area.10
- Teak Surfing (or Platform Dragging):Holding onto any portion of the exterior of the transom of a vessel (including the swim platform, swim deck, swim step or swim ladder) for any amount of time while a power-driven vessel is underway or the engine is idling.11
- Bodysurfing: Swimming or floating on or in the wake directly behind a power-driven vessel that is underway or idling.12
- Boating Under the Influence(BUI): As with other motor vehicles, it is illegal in Washington to operate a vessel while under the influence of any intoxicating liquor or drug. The law considers a person to be under the influence when the person has an alcohol level of .08 or higher.13
Life Jackets Save Lives:
Equally important to knowing the rules when operating a boat is the use of a Life Jacket or “personal flotation device” (PFD) when on the water. Washington law requires that all boaters under the age of 12 must wear a PFD that meets or exceeds current USCG standards. In addition, no person may operate or permit the operation of a vessel without a PFD on board for each person of the vessel.14 Of the 472 drowning deaths reported to the USCG in 2009, only 87 (18.4%) were wearing a PFD.15 Eighteen children under age thirteen lost their lives while boating in 2009. 50% of thechildren who died in 2009 died from drowning. Only 44% of those who drowned werewearing a PFD as required by state law.16
Most major insurance companies offer recreational vessel liability insurance and even Personal Injury Protection coverage. If your patient is injured in a boating incident, make sure to ask if there is any applicable insurance coverage. If there is, run the same protocol that you would for an automobile collision.
Homeowners’ insurance policies usually include coverage for watercraft, but the coverage is often very limited. Typically, a homeowner’s policy will pay up to $1,500 in property damage if something happens to a boat while parked at the home. The policy may even offer some liability coverage for the boat while in use, but it is usually very limited. However, a boat of any significant size will be excluded from a homeowner’s policy for both property and liability coverage. If you own a larger boat, ask your insurance agent or company about a separate policy that covers physical damage to the boat and any liability that might result from its use.
The insurance industry generally places watercraft into three categories:
- Boats: Generally between 16 feet and 25 feet, 11 inches in length
- Yachts: Generally 26 feet or greater in length
- Personal watercraft: Jet skis, wave runners and other similar vessels
If injured in a boating accident, your patient may have a claim for damages against another boater or the boat on which the patient was injured. As with motor vehicle collisions, there may be other entities at fault as well. Identifying applicable coverage may be difficult and the involved insurer(s) are unlikely to voluntarily step forward to accept liability and offer compensation. A thorough evaluation of potential issues of negligence and insurance should be completed by an attorney familiar with the nuances of traumatic injury, negligence and insurance coverage.
If your patient has experienced a traumatic injury due to a boating accident and has a potential personal injury claim, a legal consultation is advisable to learn about the unwritten and written rules of a personal injury claim. More importantly, the injured party should contact a personal injury attorney who is familiar with boating accident claims. Not every patient needs to hire an attorney to represent them, but all should benefit from a consultation to explain their legal rights and duties.
9 RCW 79A.70.30
10 RCW 79A.60.40.
11 RCW 79A.60.660.
13 RCW 79A.60.40(2).
14 RCW 79A.60.160.