Q: What do a pleasure-boat operator blindly joyriding through the darkness with no running lights after four hours of barhopping and a commercial water-taxi owner/operator without a robust written cell phone use policy have in common?
A: The exact same liability for their collision.
Through 2 a.m. July darkness, the My Day Off Too (a twenty-foot pleasure boat) chased an unknown boat at twenty-plus miles per hour through unfamiliar waters off Fire Island, New York. Its “captain” had forgotten to turn on his navigational lights, likely owing to the fact he had just finished a four-hour beachfront bar crawl. His passengers admitted they were drunk—the operator maintained he’d only had a couple beers.
The Courier, a thirty-six-foot commercial water taxi crewed by a captain with twenty-five years’ experience (and a professional deckhand), had made the run through those waters “more than one-hundred but less than a thousand” times.
Things went bad (as they do) when the two boats tried to occupy the same space.
The water taxi’s commercial operator asserted that the My Day Off Too “was solely at fault for the collision,” for the reasons noted above. The commercial operator sought to limit its liability—the Limitation of Liability Act allows a vessel owner to limit liability to the post-casualty value of the vessel for damage or injury occasioned without the owner’s privity or knowledge. The first step in a Limitation Act analysis is “to determine the negligent act or unseaworthy condition that caused” the collision. The second step is for the court “to determine whether the vessel owner had knowledge or privity of those same acts of negligence or conditions of unseaworthiness that caused the accident.”
The My Day Off Too put forward a few theories against the Courier, chief among them the allegation that the Courier’s captain was “sending a text message on his cell phone at or about the time he struck the My Day Off Too.”
Based on the evidence and expert testimony, the United States District Court for the Eastern District of New York (In re: Fire Island Ferries, Inc., Case No. 11-CV-3475 (DRH) (ARL), 2018 U.S. Dist. LEXIS 18599 (E.D.N.Y. Feb. 5, 2018)) concluded that it was “more likely than not that [the water taxi’s captain] was in the process of texting at the time of the collision, notwithstanding his disclaimers to the contrary.” “Had the Captain of the Courier not been texting,” the court continued, “it is likely he would have seen the My Day Off Too either visually or on the radar earlier than he did thereby lessening, if not avoiding, the resulting collision and damages.” The court therefore determined that the Courier’s captain negligently performed his function as a lookout. The court likewise found the My Day Off Too’s “captain” to have negligently failed to keep a lookout because he had been drinking, he hadn’t turned on his navigational lights, and he was following a completely unknown boat at high speed through unknown waters in the dark.
The court next addressed whether the commercial operator could establish it lacked privity and knowledge of its captains’ cell phone use, such that it could limit its liability. The water taxi company’s general manager testified that the company’s oral policy consisted of a general admonition that “if a cell phone is used, it would comply with the safe navigation of the vessel.” The company’s president testified that “we just treat [cell phones] as any other electronic device within the wheelhouse and we allow the Captains to make the decision on when there is appropriate time to use any device within his purview.”
The court noted the absence of statute or Coast Guard regulation prohibiting texting (or other cell phone use) while commercially transporting passengers by boat, but acknowledged that restricting regulations often lagged behind development of new technology, pointing to the fact that cell phone texting was commonplace for several years before New York State outlawed the practice for motor vehicle operators. The court determined that the commercial operator had “not shown that its oral omnibus no distraction policy was an adequate response to the cell phone problem,” finding it “roughly akin to the State of New York passing a statute requiring motorists to keep their eyes on the road, and contending that such a broad-based admonition was an adequate legislative response to the driving while texting malady plaguing our communities.”
In the end, the court allocated liability fifty/fifty between the two vessels and determined that the commercial operator could not limit its liability, holding “a shipowner will be unable to establish lack of knowledge if it knew or should have known that [a] certain condition existed, here, Captains texting on personal matters while navigating.”
The court acknowledged that “reported case law on the use of cell phones for personal reasons in situations similar to the one at bar vis-à-vis the issue of privity or knowledge—is virtually nonexistent.” That said, the issue is a very real one facing commercial operators whose crewmembers have cell phones. And everyone has cell phones.
So every operator should review their cell phone policies. Every operator needs to be sure they have explicit and specific restrictions on cell phone use in order to avoid the fate of this water taxi owner.
