Boating Case has Major Significance for Maritime Law

Boating Case Has Major Significance For Maritime Law
By Elizabeth Johnson
Massachusetts Bar Association, Lawyers Journal
October 2001
When a group of Massachusetts eight graders became involved in a serious boating accident on a New Hampshire lake – the young driver of the boat ran over his cousin, who was “tubing” behind the boat – the incident appeared initially to mirror a simple auto accident, according to Boston attorney David F. Anderson, who specializes in maritime law.

Beyond the personal grief, it was a deceptively simple case that turned out to be far more complex than anyone first imagined, involving the laws of two states, issues of state and federal jurisdiction, and the unwieldly and complicated admiralty statutes.

The Massachusetts Bar Association’s Lawyer Referral Service directed the plaintiffs to Anderson. Given his expertise in maritime law it turned out to be a practically perfect match.

During the summer of 1998, a group of eight 14-year-olds, who had been in school together since kindergarten, gathered at the summer home of Barbara Bernstein on Lake Winnisquam in New Hampshire for a last hurrah. The only adult person was Barbara’s mother, Claire Bernstein.

The kids were allowed to take out the smaller of the Bernstein’s two boats and spent the first morning at the lake taking turns driving the 16-foot boat with a 25-horsepower engine. Only Barbara and her boyfriend, Brian Frazier, had experience driving the boat. The other six had never been trained on this boat, and some had never driven a boat of any kind before.

After lunch, the kids asked Claire Bernstein to take them tubing in the large boat. Tubing is similar to water-skiing in that the inner tube is attached to the back of the boat by a long cord and towed. Claire said she would take them later. When the kids again asked, she told them she’d take them the following day.

Barbara Bernstein, her boyfriend Brian, a friend named Sean Kelly, and his cousin, Michael Bergeron, decided to go tubing in the 16-foot boat they had been using earlier.

“It was unclear if these kids had Claire Bernstein’s permission or if they just thought it was OK,” Anderson says. “Our position was that by saying, ‘You can use this boat,’ and by not placing any restrictions on it or rules, the kids understood they could go tubing.”

Initially, Brian was driving the boat, which was slow in gaining power because it was towing the tube. To make the tubing more exciting, he would make a tight U-turn toward the person who was tubing and then jerk the wheel away from the tuber and straighten out the boat as fast as he could.

Sean Kelly took the wheel to pull his cousin, Michael Bergeron. He tried to affect the same maneuver and failed, plowing right toward Michael and losing control of the boat. He ran over his cousin. The propeller ran through Michael’s shoulder, arm and head. Michael’s life jacket stopped the propeller.

The kids stopped the engine and sent some flares in the air. They then dove into the water and pulled Michael aboard. Michael was taken to Dartmouth-Hitchcock Medical Center.

“The propeller sliced through his head,” Anderson says, “fractured his skull in a couple of places and he had a broken arm and a broken shoulder.”

Amazingly, Michael’s recovery was quick and he was back in school by the end of September.

The legal batter, however, was just beginning. After the initial attorney took virtually no action the first year, the Bergerons contacted LRS, which referred them to Anderson, who immediately filed suit in Massachusetts State court against Claire Bernstein, as the owner of the boat, claiming negligent entrustment. He filed suit as well against the operator of the boat, Sean Kelly, also claiming negligence. There was no animosity between family members, Anderson says, despite the Bergeron’s lawsuit against Kelly. Anderson believed there should be no federal jurisdiction in the case because no maritime law as involved. But the defendants’ lawyers believed differently.

The Bernsteins went to federal court with a claim of limitation liability, relying on an 1850 maritime law that says if your boat is involved in an unforeseeable accident, the owner is liable only for the value of the vessel, in this case $7,000.

Anderson, detailing the history of limitation liability, argued in court that the law was designed to serve those involved in maritime commerce and could only apply in navigable waters. Lake Winnisquam is landlocked, he argued. The defense, which employed “about eight law firms specializing in maritime law,” according to Anderson, responded that trappers 200 years ago had canoed from the lake to the another body of water to sell furs, which meant the waters were at least historically navigable.

Relying on a 1911 Supreme Court ruling in Richardson v. Harmon, which determined a boat does not have to be in navigable waters to claim limitation liability, Federal Judge William Young, after writing a 20-page opinion on the matter, agreed to hear the case in federal court. He stayed the action in state court and set the trial date for just six weeks later.

But once they reached his courtroom, Young asked why the two sides hadn’t yet settled. The operator’s family had $100,000 in homeowner’s insurance and the owner of the boat had $500,000, plus a $1 million umbrella policy. Young lifted the stay in state court and sent the players back.

State Judge Walter J. Skinner determined the case was worth about $600,000. “We were in a pretty good position because the two defendants were pointing the finger at each other,” Anderson says, “and that’s a good position to be in as a plaintiff. The owner’s defense was, ‘We can pin it all on the operator, he was negligent. He turned too sharply.’ I said, ‘I don’t get it. Why do you want to point the blame on the operator? If the jury pegs the operator, you pay because your policy covers permitted users.’ They realized they would have to pay coming or going unless they won the case in its entirety. We went to trial and the second day of trial they settled.”

“It initially appeared to be a run-of-the-mill negligence case, but it ended up as a hard-core maritime case,” Anderson says. “I think they did very well by contacting the Lawyer Referral Service. This year, in terms of pure law, it was the most complex case I had. The initial attorney and the clients didn’t recognize this as a maritime law case. The insurance companies did recognize it and would have made mincemeat of the plaintiffs.”

In addition, Anderson adds, the case has had major significance for admiralty law attorneys, who have generally dealt with cases involving collisions at sea. Because of Judge Young’s ruling based on Richardson v. Harmon, he says, “Now all of the sudden the logical conclusion in this case is … there is no limitation on the size of the vessel, there is no commercial limitation; now [a case could involve] jet skis. It doesn’t even have to be a navigable waterway. A canoe could be on a roof rack that wasn’t tied down tight and land in a car windshield and kill someone, and you could file a petition of limitation liability in federal court.”