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A Legal Perspective: Dram Shop Issues Raised in Boating Accident

With the arrival of the Fourth of July weekend, boaters in the region are excited about getting on the water and making up for the cold gray days of winter. For some, it’s time to break out igloo coolers and sunscreen while enjoying warm reunions with fellow boaters at raft-ups. For others, it’s a time to visit waterfront restaurants and clubs whose welcoming neon lights were covered with snow and ice only a few months ago. As the season gets underway, we sometimes hear public service announcements warning of the dangers of alcohol on the water.

Even without such announcements, readers appreciate the consequences of drinking and boating. The Coast Guard offers compelling statistics that underscore the role of alcohol in boating accidents. Furthermore, alcohol on the water can result in criminal prosecutions for Boating While Intoxicated (BWI) or Boating While Ability Impaired (BWAI). And in the civil lawsuits that can materialize in the aftermath of an accident, alcohol is a major factor that courts consider in determining the respective faults of the vessel operators.

And if an accident does take place, this business of determining who was at fault is something often confined to the people aboard the vessels involved. But in a recent East Coast boating accident involving alcohol, a guest brought legal action against the water taxi operator that brought her and the boat owner from a vacation-entertainment resort out to the boat. Shortly after getting underway, the boat got into an accident.

The resort provided water taxi service between its bar and boats using its mooring facilities. After a night of drinking, a boat owner was taken out to his boat by the water taxi. In a subsequent trip, he was joined by the guest, who was presumed by the court to have taken the same water taxi out to the boat.

The boat left its mooring buoy at around 1:00 a.m. About an hour later, it hit the cement pilings of a bridge. The guest was injured and sued the vessel owner and the resort, presenting claims asserting admiralty and maritime jurisdiction under the Federal Rules of Civil Procedure and common law negligence. The admiralty and maritime claims included negligence and conspiracy against the vessel owner and resort, as well as maritime dram shop liability. The common law negligence claims were brought under Maryland state law against the vessel owner and resort. In response, the resort sought dismissal of the claims.

After considering the legal issues, the court ruled in favor of the resort, dismissing the claims against it. The court deemed the resort did have a duty to exercise ordinary care to avoid putting a water taxi passenger in a dangerous situation. This duty of care is a key element of legal actions based on a theory of negligence. However, the court did not feel the guest presented a plausible claim that the resort violated such a duty.

Regarding dram shop liability, the boat guest relied on a Massachusetts case in which a private transportation company brought an intoxicated person to his car. The intoxicated person drove away and subsequently got into an accident in which an individual was killed. The majority in the Massachusetts court held that the defendant owed a duty of reasonable care to avoid discharging someone who they knew, or should have known, was intoxicated and likely to drive an automobile [and injure others thereafter] (Commerce Insurance Company v. Ultimate Livery Service Inc., 897 N.E. 2d 50, Massachusetts 2008). However, the court noted that other states had ruled to the contrary on this issue and that many states, including Maryland, had not yet addressed the issue.

In terms of conspiracy-based claims, the court found no federal law governing conspiracy in admiralty cases. Therefore, it applied Maryland law. Facing a similar situation on the issue of conspiracy in a different admiralty lawsuit, a South Carolina court had applied South Carolina conspiracy law for the same reason (Alonso v. McAllister Towing of Charleston, Inc. 595 F. Supp 2d. 645, 651-652, District of South Carolina 2009). After review, the court dismissed the boat guest’s conspiracy claim. And again ruling for the resort, the court dismissed the guest’s common law negligence claim.

Tim Akpinar is a New York based maritime attorney and has taught law at SUNY Maritime College.


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