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Legal Perspective Legal Issues with Boat Wakes

April 19, 2017

Some of the most interesting, yet difficult, cases I’m approached with involve boat wakes. I sometimes tend to compare them to car accidents in which one vehicle doesn’t actually touch the other, yet causes it to crash. I realize the analogy is somewhat flawed unless we throw in something physically comparable to a sea wave, like the slipstream of air from an eighteen-wheeler whooshing by at 65 mph on a rainy night. Yet, the point is that it can be difficult to prove that someone ran into a guardrail on the BQE because another vehicle cut them off, and similarly, that someone sustained damages or injuries from a boat wake rolling across the water’s surface for great distances.

 

Legal issues aside, the propagation of wave energy through water is in and of itself an interesting subject to which ship designers devote great time and thought. By studying the performance of scale models in testing tanks, naval architects develop hull designs that possess the best seakeeping qualities against real waves. But these efforts probably provide little consolation to the poor soul on a moored weekender who gets tossed around a cuddy cabin because of the large wake from a passing vessel.

 

Maritime law subscribes to the doctrine that a vessel is responsible for damage resulting from its wake. And this was a fundamental premise in a recent case involving the captain of a tugboat who was injured by another tug’s wash in a canal. The captain had been painting the hull on a moored tugboat when something got caught in his eye. After attempting to wash out the debris, he decided to seek further assistance. As he was stepping onto another tug, one of the tugs moved about a foot or foot and a half. This caused him to become wedged between the two vessels with one of his legs dangling over the canal. In trying to get free, he dislocated his shoulder.

 

The captain stated that he heard, but did not see, another vessel passing as he fell. He recalled engine noise and the sound of chains. After relocating his shoulder, he saw a tug in the distance. According to court papers, the other tug was somewhere between a quarter mile to half a mile away and producing a one to one and a half-foot wash. The injured captain was able to identify the operator of the tug from the color scheme on its funnel.

 

The captain later filled out a marine casualty report form. Evidence confirmed that a tug and empty barge did in fact pass this location. That was not disputed. However, it was the speed of this tug which became the subject of scrutiny. The captain of the passing tug testified that he traveled past the moored tugs at the minimum speed possible without disengaging one of his two engines. He added that it would have been dangerous to put one of the engines in neutral, as it would have caused pulling to one side. He said that he operated the tug at a reasonable speed, producing little wash.

 

An expert witness pulled up Automatic Identification System (AIS) records for vessels transiting the canal that day. The expert concluded that the tug and barge were traveling at approximately 3.2 knots. He contrasted this with other vessel traffic in the canal. It was shown that 39 other AIS-equipped vessels passed by the same location at an average speed of 4.8 knots, with only three vessels doing less than 3.2 knots. One tug passed at a speed of 6.5 knots less than 30 minutes before the accident. The expert argued that 3.2 knots was a reasonable and safe speed for a tug pushing an empty barge.

 

The defendant cited maritime case law holding that “A vessel has a duty to proceed carefully and at such speed so as to avoid creating unusual swells which may damage persons or property along the shores.” Maxwell v. Hapag-Lloyd Aktiengesellschaft, Hamburg, 862 F.2d 767, 768 (9th Cir. 1988). The court felt that there was no evidence to show that the passing tug negligently transited the canal in a manner that produced unusual swells or suction. Incidentally, the term “suction” really describes a different hydrodynamic phenomenon that takes place between vessels. This took place when the White Star liner Titanic passed alongside the New York and the resulting suction pulled the smaller liner off its mooring. Titanic was leaving Southampton for its fateful maiden voyage on April 10, 1912. Tragically, Titanic would never see New York, but a collision with the smaller ship (whose name rings with a sad irony on that point) was narrowly averted that day.

 

As for the matter at hand, the court ruled in favor of the company that operated the passing tug and barge. While the case illustrates the basic concept that a vessel is responsible for its wake, it also touches upon some of the issues that can arise in establishing a connection between a vessel’s wake and ensuing damages.

 

Ref: Matthiews v. Crosby Tugs, Civil Action No. 15-5985, United States District Court, Eastern District of Louisiana

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