I. Facts:
1. At approximately 7 PM on June 24, on Beye Lake, a collision occurred between a 23.5 foot, 2004 model Rinker Captiva motor boat and a tube/tuber being pulled by an 18.5 foot, 1993 Marada motor boat. The Captiva was being operated by Ht; the Marada by Hg. Ms. Rn, being towed behind the Marada was injured in the collision. There were three persons on the Captiva, and six on the Marada, excluding the person on the tube.
2. Per the Boating Accident Report (BAR): “Vessel #1 (Marada) was being operated in a crossing situation to vessel #2 (Captiva). The operator of vessel #2 turned hard to port to avoid a side impact of vessel #1 and to cross behind vessel #1. The operator of vessel #2 stated he did not see the tuber. The tuber was struck by the port bow of vessel #2 and the tuber traveled under the boat (#2) impacting the propeller…” The operator of the Marada was cited for violation of: A. (Not maintaining) proper lookout: Failure to avoid collision; and, B. Crossing Situation: Failure to keep out of way in crossing. The operator of the Captiva was cited for (not maintaining) proper lookout: Failure to make appraisal to avoid collision.
3. The diagram attached to the state BAR indicates that vessel #1 was proceeding in a Southwesterly direction, with vessel #2 proceeding toward the East. The diagram also shows two vessels to the North of vessel #2 going in an Easterly direction, and one vessel labeled “pontoon” to the starboard or South of vessel #2 proceeding toward the East. To the starboard of the pontoon an area is depicted presumably showing shallow water or a sandbar. The statement of Hi, son of the operator Hg, states: “…We just started out when we did not go more than 100 yards when this other boat came out of nowhere…” Hg’s attached diagram shows the Marada going toward the West with a sand bar to the South and the striking vessel coming generally from the West.
4. Mr. Ht, operator of the Captiva in his statement attached to the BAR says: “…I was traveling East…running parallel with a pontoon I had sold a customer, I was not turning at all, and was giving a wave to my customer just after I overcame another vessel as I passed them on their starboard side and went all the way past them. I turned to give my customer another wave, all of a sudden coming across my bow from the port side was a boat…I responded by turning to port…They came out of nowhere…” Mr. Ht’s diagram shows two vessels off his port side going the same direction as his boat, a pontoon (‘toon) to his starboard, and a sandbar to the right of the pontoon.
5. In his deposition, Hg, the operator of the Marada states on page 15-16 of his deposition: “…I inched the boat forward until I got the rope tight. I looked around. There’s no one in the area that’s any threat. I just started to accelerate, and I wasn’t going 5, 10 miles an hour. And I noticed this boat off to the right that was paralleling me, coming towards me. He was probably 100, 150 yards to my right. And I saw him when I first got started. Didn’t seem to be no threat. And I no sooner than got going …and he had made a turn to his right (?) and was coming…at my 2:00’…I wasn’t worried about it yet because he was…150 yards out…” Prior to this, on page 14, Mr. Hg notes that a sandbar is on the south shore. On pages 48 and 49 of his deposition, Mr. Hg states that he was watching the tuber behind him.
6. On the attachment/exhibit to his deposition, Mr. Ht shows a pontoon boat to his left, between his boat and Papa Boos’ docks. He also shows his boat in two locations on the diagram. In the most westerly location, the pontoon is depicted potentially on a line between Mr. Ht and the tube towed by Mr. Hg, if not with Mr. Hg’s boat. On page 30 in the deposition, Mr. Ht states: “I was passing, coming up on a pontoon traveling at approximately probably 10 mile an hour. I was going approximately 30 to 35 miles an hour. I passed the pontoon on their starboard side.
7. In his expert report Co states: “The operator of boat #1 (Hg) was negligent in not carrying out his primary responsibility of protecting the safety of his vessel and the people aboard his boat. This means that he should not have exposed his passenger to the dangers and harm that might befall anyone being towed in a tube by his boat, in an area of crossing traffic and of much boating activity…One other item that must be pointed out and that is the tuber would be close to the waterline, with head raised no more than a couple of feet above the waterline and probably screened by the towing boat at certain crossing angles and distances from the eyes of on-coming traffic. Both of these elements may make it difficult and at times impossible to be seen by on-coming boats. Without a doubt, the action of the boat operator (Hg) permitting this type of recreational activity in this area was reckless and irresponsible…”
8. In his expert report Co also states that operator #2 (Ht) failed to maintain a proper lookout as he had his head turned away from boat traffic ahead of him and from boat #1 (Hg) which was crossing from Ht’s port to starboard. Upon realizing the close encounter Ht turned his wheel hard left to avoid Hg, then hard right to go around Hg’s stern. It was not until the right hand turn that he realized a tuber was following Hg’s boat. Co states that Ht did not make a proper assessment beforehand due to Ht’s not paying complete attention by maintaining a proper lookout. Furthermore, Mr. Ht erred because his turning to port is “forbidden under the law (OAC 1501;47-2-17).” Finally, Ht “…was going at an excessive speed (estimated to be between 21-40 knots) in a high boat traffic area.”
II. Opinions:
1. The BAR indicates that the rules of the road interpretation is one of crossing per the report’s diagram and the citing of Mr. Hg for failure to keep out of the way in a crossing situation. 33 USC 2017 Rule 17 Action By Stand-On Vessel, states: “(c) A power-driven vessel which takes action on a crossing situation in accordance with sub-paragraph (a)(ii) [E.g.: The vessel required to maintain course and speed may take action to avoid collision as soon as it becomes apparent that the vessel required to stay out of the way is not taking appropriate action.] of this rule to avoid collision with another power driven vessel shall, if the circumstances of the case admit, not alter course to port for a vessel on her own port side.”
2. In his report Co faults Mr. Ht for not maintaining a proper lookout and for turning to port to avoid the collision, citing OAC 1501; 47-2-17 as grounds for the latter violation. Paragraph (d) of 47-2-17 states: “A power-driven vessel which takes action to avoid collision with another power vessel shall not alter to port for a vessel on its port side.” Clearly, the state statute does not agree with the federal requirement, as the latter allows discretion to turn to port depending on the circumstances present. In such cases of conflict between state and federal law, state law is subordinate. The basis for primacy of federal law is contained in the Federal Boating Act of 1971. Per the requirements of the Act, in order for a state to receive federal boating grants in aid, the state boating law must conform with federal regulations such as the Rules of Road, 33 CFR. The state most definitely receives federal boating safety funding, hence it must conform to federal statutes. The reason I am familiar with these relationships is that I was the Coast Guard State Liaison Officer for Boating Safety, Second C.G. District,St. Louis,MO. Although this state was one of my secondary state responsibilities, I worked very closely with the state’s boating law administrator and was familiar with their grant in aid program.
3. Per the drawings submitted in the case, there clearly is a sandbar to the right of Mr. Ht’s travel, with a pontoon obviously located between him and the sandbar. The sandbar and pontoon to the right of Mr. Ht therefore introduce the circumstances allowed in 33 USC 2017 (c) for Mr. Ht to turn left.
4. Mr. Hg states in his deposition that he was watching aft toward the tube during Mr. Ht’s approach. Mr. Hg also introduces confusion into his description of the Captiva’s approach as he states in his deposition that he and the Captiva to his right were on “paralleling” courses and that Mr. Ht turned to his (Ht’s) right. Obviously the Captiva can not be paralleling him, on a reciprocal course, yet be both to his (Hg’s) left, and to turn right to cause the collision.
5. Per the diagram attached to the BAR there are at least two boats, one of which is described as a pontoon by Mr. Ht in his deposition, between the left side of the Captiva and the right side of the Marada. I believe that the pontoon situated between Hg and Ht, being of a pontoon’s high freeboard, with railing, seats and probably awning, effectively shielded Ht from seeing Hg and vice-versa, as the Captiva and Marada closed upon each other. Both Hg and Ht apparently looked around to ascertain if any traffic was, or would be in their intended paths of travel. However, Hg’s confused rendition of the situation is due to his:
A. Noting a group of boats approaching from his left;
B. In which he may or may not have actually, initially seen the Captrva;
C. While he was getting his boat and towed tuber underway;
D. While splitting his attention and visual tasks into watching both traffic and tuber over a short period of time.
Here again Co in his report notes: “…boat operators must be alert by maintaining a proper lookout, monitoring the situation with respect to other boats to determine any risk of collision…These important matters require the full attention of the operator…With full attention on boat traffic, very little attention, time or effort would be available to seeing to the safety of the tuber being towed astern.” I believe this corroborates my belief in Mr. Hg’s negligently not concentrating on the traffic around him.
6. In a towing situation, the operator of a towing vessel must treat his boat and the towed object as one, much longer vessel. He must then take this extended length into consideration while reviewing/planning his course and movements. He must insure that he has maneuvering way and clearance with all approaching traffic. I believe that Mr. Hg failed in this obligation, thereby precipitating the unfortunate incident/injury to Ms. Rn. In his report, Co substantiates this assertion as well as explaining that Mr. Ht, in executing his quick turn to avoid Young, may not have seen the tuber due to her being obscured by the Hg boat and her being close to the waterline.
7. Relative to Co’s belief that Mr. Ht was operating at an excessive speed in a high boat traffic area, Co does not know how fast Mr. Ht was actually traveling. In Co’s report, Ht’s estimated speed is indicated as between 21 (23.1 mph) to 40 knots (44 mph). The second speed is almost double the first. I do not believe that this range and disparity of possible speeds lends itself to a definitive finding of negligence, especially when consideration is given to the argument that Hg’s boat was hidden and Ht thought the way ahead was clear.
III. Conclusions:
1. I do not believe Mr. Ht is negligent as there is a very good possibility that when he viewed vessel traffic around him, prior to waving to the customer on his right, the pontoon boat to his left obscured the Marada motor boat. Additionally, as explained by Co’s description of the difficulty in seeing a tuber behind the Hg craft, Mr. Ht should not be held responsible for striking Ms. Rn, as she was probably screened from him until he was almost on top of her and he was unable to maneuver to miss her.
2. Mr. Ht likewise was not negligent for turning left to avoid the collision as this was his best option, fully allowable by the federal rules of the road, since the traffic and sandbar to his right precluded a turn in that direction.
3. I find that Mr. Hg caused this accident by giving too much of his attention astern to the tuber while not monitoring the boat traffic around him, as well as not realizing that he must have an area of maneuver sufficient for a vessel as long as the distance from his bow to the tuber.
