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Legal Perspective - The Element of Notice in Maritime Lawsuits

If you placed someone in a small vessel off the coast of Hawaii and asked them what their most pressing safety concerns might be if something were to go wrong, a number of things could come to mind. One concern might be that ocean current could take a vessel thousands of miles out to sea before the next landfall in the event of an engine failure or navigational error. Another might be that if the boat were to sink, some of the marine life indigenous to the region include tiger sharks the size of a compact car. In terms of safety concerns, lava might not be something high up on this list of woes for someone who isn’t familiar with the dynamic volcanic geology of the Hawaiian Islands. But it was in fact lava that became the very safety hazard at the heart of an incident in July 2018 involving a tour boat in Kapaho Bay, Hawaii. Close to two dozen passengers were injured by flying volcanic debris. This included a large “lava bomb” that passed through the canopy of the tour boat as effortlessly as a 16-inch shell plunging through a 2-inch armored deck. The projectiles were the result of hot lava from Kilauea Volcano hitting the relatively cooler water of the Pacific Ocean, resulting in the explosive reaction. The dangers of such a setting, with its molten lava and cocktail of gases, bring us to the legal element of notice. This business of notice is a central issue in many maritime lawsuits, as well as non-maritime lawsuits for that matter. In a nutshell, “notice” basically comes down to whether the alleged wrongdoer knew about the condition at the heart of a lawsuit. In the aftermath of the tour boat lava incident, some passengers initiated legal actions. Lawsuits of this type generally involve the legal theory of negligence. That means plaintiffs argue that a wrongdoer owed them certain duty, based on a given standard of care. Plaintiffs typically assert that such duty was breached, and as a result, they sustained injuries. This theory loosely equates to the more familiar household term we call “carelessness.” In these types of lawsuits, establishing negligence could hinge upon how much knowledge, or “notice,” one had about a given risk. In the case at hand, one of the elements the court could look at is earlier warnings and notices issued by the U.S Coast Guard in Hawaii. In 2017, the Coast Guard had established a temporary safety zone for navigable waters surrounding the area where Kilauea Volcano’s lava entered the Pacific Ocean. This safety zone was to cover waters extending 300 meters in all directions. Together with this zone, the Coast Guard also warned that lava entering the ocean could generate explosions of debris that included volcanic glass fragments, particles, steam, and hydrochloric acid fragments (U.S.C.G. 14th District). In general, the introduction of the element of notice in a lawsuit serves to establish that a wrongdoer knew, or should have known, about a condition that posed a hazard to people, whether they were visitors to a store or passengers aboard a ship. On large ships, the issue of notice can arise when it comes to passengers being injured in falls resulting from spilled liquids, debris on the deck, torn carpets, peeling floor tiles, or other defects. A fundamental question that comes up in these cases is whether the vessel owner was aware of the conditions. The element of notice is something of a two-edged sword in the realm of litigation. A plaintiff could argue that a defendant knew about a condition, or should have known. At the same time, if defendants are able to offer cogent arguments that they were not aware, that could provide a significant defense. This business of knowing about a hazard is well entrenched in the law. On a larger scale, think of some of the class action lawsuits dealing with industrial hazards. What is often argued in those lawsuits is whether a company knew about the risks of a product or substance to which its workers or the public was exposed. In the grand scheme of things, the issue of notice might not seem like the biggest issue in the courtroom. But it has been a pivotal factor in some of the largest lawsuits out there.

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