Last week I again served to assist a powerboater wrongfully charged with two counts of negligent operations. This was just one of three cases I was personally aware of during the 2016 calendar year and in the two cases where the boater was strong enough to stand up against the law, they rightfully won!
The vast majority or boaters do not know the rules governing the operation of boats and lack the skill to be proficient of the required operation. Additionally many law enforcement officers (LEO) patrolling the nations waterways also do not know the law and how it applies to the actual operation of watercraft.
While most state boating safety laws mirror or incorporate federal laws, some states add additional language for reckless or careless operation. Within the State of Florida, Florida Statute F.S. 327.33 defines reckless operation of a vessel as the operation or manipulation of any vessel with willful or wanton disregard for the safety of persons or property at a speed or in a manner that endangers or is likely to endanger life and limb, cause property damage or injure another. The same statute defines careless operation of a vehicle as failure to operate the vessel in a reasonable and prudent manner, without regard for traffic, posted speeds and wake restrictions. The former is a first-degree misdemeanor, punishable by up to one year in jail, while the latter is a noncriminal violation, subject to fines.
Here are a few examples of what could be considered reckless or careless operation
- Operating a vessel with a high speed.
- Allowing a swimmer, diver or skier to come in contact with a propeller.
- Failing to carry proper safety equipment on board.
- Slamming into a big wave at speeds deemed excessive.
- Crashes with other boats or fixed objects.
- Overcrowding or overloading a boat or vessel.
- Weaving through congested waterway traffic.
- Not educating oneself on the “rules of the road.”
- Heading out in poor or potentially dangerous weather conditions.
- Approaching another vessel intentionally and swerving at the last possible moment in order to avoid a crash (aka “playing chicken”).
- Towing a person on a surfboard, water skis or similar device behind your vessel in such a way it causes the towed person to collide with another person or object.
- Allowing passengers to ride on raised decks, seat backs, transom, gunwale or bow where there may be a risk of falling overboard.
- Operating in a “No Boat” area.
- Boating under the influence of alcohol and/or drugs.
Within the State of Florida, the Florida Fish & Wildlife Commission (FWC) considers reckless and careless operation a serious and ongoing problem.
Specifically for negligent operation of a vehicle (which includes reckless operation, careless operation, navigation rule violations and failure to report accidents), authorities in Florida issued 1,111 citations in 2011. In 2012, they issued 804 citations, 642 in 2013, 1270 in 2014 and 734 in 2015. FWC
The big problem… Many of these negligent or careless operation citations are written without the boater actually committing an offense that meets the requirements of the law and can’t be articulated by the LEO to support the citation. Adding to the problem is most boaters that I have seen are reluctant, scared, nervous or simply don’t want to bother fighting. This reluctance just adds to the problem as we don’t have the chance to educate the court or the LEO’s.
A recent case in California was challenged by the boater and all of his charges were dismissed with prejudice. Last weeks case here in Florida was a resounding not guilty! The officers simply check the box on the citation and can’t even begin to support the citation so when we review the case I can usually very quickly determine what is, or is not. To add to the problem, the cases are usually heard in civil court not Federal Admiralty Court which means we have to educate the court so they can really understand and learn what boating is as well.
In a recent on-water circumstance I was party to during a poker run along the mid east coast about 12 boats were stopped and cited for negligent or careless operations. I did about 15 minutes of work and determined clearly the officers had no right or ability to articulate to the law that the action stated on the citations met the requirements of the violations. VERY regrettably not one of the boaters were willing to take a stand and go to court and fight for not guilty. Their opinion was since they frequently went boating in the area, the fear of retribution from the LEO’s was too much to risk. This position is very frustrating as there is a real fear on the water, which should be the last remaining place of have almost unrestricted performance freedom.
I have even been stopped and cited for negligence on the Powerboat Nation CIGARETTE. A few times in fact, and in those instances, I never even went to court, balancing on the verge of being taken straight to jail, after a discussion with the officers they learn they don’t stand a chance in front of a Judge because their opinion is not the law and they withdraw the citations on the spot.
If you are ever cited on the water, I strongly encourage you to really evaluate your options and consider writing to the hearing officer in the case of a U S Coast Guard citation or going to court if it is a State or municipality charge, and if you hire a lawyer make sure they are Admiralty Attorneys!