SUMMARY
 

There are Federal and state rules addressing boating safety, boating liability and injuries suffered on the water. For the most part, these rules are based on the common law concept of “negligence” or “due care”. If someone acts in a way that is not “reasonably safe”, they [or more practically speaking, their insurer] will be responsible for any injuries caused. Just as with cars, owners of boats are responsible for injuries caused by their negligent operation.

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In northern Michigan, marine accidents are altogether too common. There is no scheme like the no fault law to compensate all injured boaters, so resort must be made to Federal laws governing maritime activity or to state laws governing negligence. Sometimes the attorney must select the compensation scheme under which a claim should be pursued based upon substantive differences in the law or the Judge or jury likely to hear the claim; on other occasions, only one forum may be available to compensate the victim(s).

As with motor vehicles, there are State laws relating to alcohol consumption and careless operation that may come into play. Also similar to motor vehicles, there is a statute making boat owners responsible for injuries caused by the boat operator. Under federal rules, if an injury occurs on navigable waters, the victim may also benefit from rules regarding the seaworthiness of the craft and other safety measures.

We find that because many jurors and insurance adjusters are poorly informed about boating safety, these cases place a premium on educating people with regard to boating practices and safety education. It is usually essential to retain an expert to reconstruct what happened, to explain safe practices and to demonstrate how an “accident” should have been avoided.

Pre-activity releases

If the injury arose out of negligence in renting recreational equipment or services, we are usually faced with a battle over pre-activity Release Agreements. Insurers often insist that the rental company or service provider require its customers to execute a document releasing the company from any injury or damage claim–even if the injury results from the dealer/operator’s own negligence. Twenty years ago, the Michigan courts routinely held that such Releases were not enforceable unless there was specific compensation to the citizen for giving up substantial rights in advance. The courts were particularly harsh on purported agreements to waive the rights of a minor child. To this day, enlightened organizations such as the Girl Scouts of America will not countenance participation in any activity sponsored by an entity that insists on an anticipatory waiver of its own responsibility for safety.

Unfortunately, the “reform” courts in Michigan have been more willing to recognize the anticipatory waiver of rights: the most aggressive jurists do not recognize any public policy safety issue inherent in allowing people to insulate themselves from the consequences of their own misconduct. As a result, recent decisions have shown greater willingness to hold negligent actors immune from their own mistakes by relying upon vague, blanket “waivers” signed by subsequently injured participants. Further, the “reform” judges have been unwilling to take into account the oft-encountered circumstance under which a Releasing party is given no real opportunity to read and understand precisely which rights are being waived, to negotiate terms or to seek independent advice.

Where such release or waiver documents are honored by the court, it is usually necessary to prove gross negligence or willful and wanton misconduct by the renter/operator in order to recover for injuries suffered. Since “mere” negligence will not suffice to support a claim, thorough investigation must be undertaken to establish the operator’s knowledge of risks, safety history and practices, and instructions and warnings.