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June 28th, 2018

Texting on water prompts discussion for legislation

Water taxi and ferry transportation has dramatically risen in popularity among commuters. The appeal of a calmer, less congested and more aesthetically pleasing route has many choosing this alternative over the typical high-pollutant, high-traffic and seemingly safer ground transportation system. But does less traffic mean all is well on the waterways? Not exactly.

Recently, a New York water taxi crashed into another vessel after its operator was sending text messages on his cell phone. This incident, along with several others of its kind, has called attention to the use of mobile phones by vessel operators.

In terms of the statutory Lookout Rule violation, mobile phone use by a vessel operator involved in a collision can be difficult to defeat. Moreover, when a distracted operator causes the collision of two vessels, a claimant may attempt to hoist liability upon the owner of the vessel. Liability to affected third-parties can be pricey for vessel owners.

In 2010, a tugboat pushing a 250-foot sludge barge slammed into a 33-foot duck tour boat on the Delaware River. 34 passengers and two crew members had been stranded on the duck boat in the middle of the river after experiencing engine issues during the tour. The tugboat operator, who was on his mobile phone, did not see the duck boat. As a result, the tugboat rammed into the duck boat and pushed it under water. Two passengers drowned, and many others were injured. The operator was charged criminally and was sentenced to a year in prison.  The owner of the tugboat filed a Limitation of Liability Action in efforts to limit its liability to the value of the tug and barge. The owner of the tug claimed to have had no knowledge of mobile phone usage aboard its vessels. Before the court issues its ruling on the owner’s Limitation Action defense, the duck boat and tugboat owners reached a $17 million settlement with all claimants.

Similarly, the owner of the New York water taxi tried to limit its liability to the value of its vessel. The vessel owner enforced a verbal policy that required captains to avoid all unnecessary distractions while operating the vessel. However, this verbal policy was determined by the court to be inadequate, as it did not specifically acknowledge the issue of texting. Additionally, the court found that the owner knew about and took no specific measures to prevent captains from the associated dangers of using cell phones for personal reasons while underway. The court held that, as a result, the company was complicit in the wrongdoing.

The Coast Guard has been urged to implement a policy regarding personal cellphone usage aboard its vessels. In 2009, a Coast Guard boat struck a passenger vessel and injured half a dozen passengers off the coast of South Carolina. Investigations revealed that the collision occurred because the Coast Guard officers were texting on their cellphones. Shortly thereafter, a U.S. Coast Guard patrol boat collided with a recreation craft near the coast of San Diego, California. An eight-year-old boy on board the recreational craft died, and four others were seriously injured. Again, the NTSB concluded that the crash occurred due to the crew’s cellphone use. Criminal charges including negligent homicide were brought against the U.S. Coast Guard, but a jury convicted only on dereliction of duty. The families on board the recreational boat filed claims against the United States for wrongful death and personal injuries.


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