Captain Damaged Neighboring Boat- Who is Responsible?

[Pelagic]

In terms of liability... any Captain only needs to report the collision/grounding/fire...etc to proper authorities to avoid successful liability prosecution.
(Think Exon Valdez as an extreme political attempt but it also applies to yacht captains)

The Civil damages are handled by the insurance companies whose policies should cover the boat owner from the uninsured.

If you do not have that level of coverage, then as an Owner....you are on your own....
Check your policy.

[xymotic]

Originally Posted by Pelagic

In terms of liability... any Captain only needs to report the collision/grounding/fire...etc to proper authorities to avoid successful liability prosecution.
(Think Exon Valdez as an extreme political attempt but it also applies to yacht captains)

The Civil damages are handled by the insurance companies whose policies should cover the boat owner from the uninsured.

If you do not have that level of coverage, then as an Owner....you are on your own....
Check your policy.

I don't think that's quite right - A captain has to report it to avoid *some* Criminal liability but reporting an incident does not absolve one of liability automatically but IANAL

Case in point would be jail sentences handed down to BP

[Pelagic]

Originally Posted by hellosailor

I would expect that hiring a captain for a vessel is not at all the same as hiring someone for the specific and limited purpose of transporting a vessel on a much more limited delivery trip. Perhaps not.

Having studied Marine Contracts for various national jurisdictions... they do differ!
Some are very Dogmatic while others show Intent as their guiding judgment.

However, if an owner approves of any captain operating his yacht...for whatever reason... The Owner accepts liability for that operators actions....

Higher risk if captain is unlicensed as many courts will even excuse the operator.. (as not knowing any better) if they were the cause of an accident.

But not the Owner!

You get what you pay for.

[Jammer Six]

Originally Posted by boatman61

And here we are talking US state and federal law.. as opposed to International Maritime law..

That would be because this thread is talking about a U.S. boat in U.S. waters hitting another U.S. boat, and how they do things in Ethiopia, Asia or international waters doesn't really matter.

What did you want to talk about?

[Scott Berg]

Easy...
You pay them...
You take it out of the captain's pay...

Oh, and I delivered boats for years and always had my own insurance.
Can't imagine the risk of not having it!

[captain58sailin]

I am not completely sure of all the legal parts, but reason dictates that unless the delivery capt. has a business license for delivering vessels and he had a contract with the owner for the delivery, he would be viewed as an employee. If I am wrong about this thought sue me .

[boatman61]

Originally Posted by Jammer Six

That would be because this thread is talking about a U.S. boat in U.S. waters hitting another U.S. boat, and how they do things in Ethiopia, Asia or international waters doesn't really matter.

What did you want to talk about?

Sorry.. forgot.. your not part of the world.. that's why your buoys are arse about face..

[Dockhead]

Originally Posted by Stumble

Dock head,

Hired captains are statutory employees of the vessel. In fact they are also officers of the vessel. It does get a little tricky when you are dealing with wet charters to contracting officers and third party staffing companies, but I highly doubt that this has ever come up in the realm of private yachts.

Even short term delivery captains on a pleasure yacht? Irrespective of what is said in a contract with the owner? Remember we don't know what the contract said (if any was signed). Maybe you're right; I'm not a maritime lawyer (still regret missing those classes in law school!), but I would check.

I would be surprised if it is that simple, and if it is, then it is very different from ordinary civil situations, where as I'm sure you know, the determination of what makes an employment relationship versus an independent contractor relationship can be fairly complicated and is often ambiguous.

In either case, however, I think it is fairly clear that ordinary risks of the operation of the vessel belong to the owner. Just because some damage occurred while a hired delivery captain was in charge does not necessarily make him responsible for it. Depending on what is in the contract, and what is the nature of the relationship, the captain would have to be acting outside the scope of his assignment (e.g. he had taken a detour to visit his girlfriend), and/or with some degree of negligence, probably gross negligence, before the damage becomes his responsibility.

To those insisting on bonding and insurance for the captain -- just try it in real life. This is a question of risk management and insurance cost. I doubt many delivery captains will sign a contract which means that they will have to sell their house in case the vessel is wrecked, and as someone else mentioned, specific insurance for delivery captains may be unreasonably expensive. In most cases I think this is an ordinary risk of the vessel which is most efficiently covered by the owner's own insurance. If he doesn't like the high deductible, he can change it. Or -- a reasonable compromise might be to agree with the captain that if something happens due to his ordinary negligence (probably a lower standard than would otherwise apply), the captain will reimburse the deductible.

But if something happens which was not caused by anyone's carelessness -- and sometimes boats get caught by unexpected gusts, for example, and there is just nothing you can do about it -- then the owner needs to stop looking for someone to transfer the risk to.

[Pelagic]

Quite often the contract is no more than a handshake if it is being done cheaply.

[boatman61]

Originally Posted by Pelagic

Quite often the contract is no more than a handshake if it is being done cheaply.

Cheaper than me then.. but I like that bit of paper to cover my ass.. also.. if the owners not prepared to sign it.. its a fair bet his intention is to try and screw me.

[Sailor_Hutch]

Originally Posted by RainDog

I would think when you hired him you signed a contract that spells out exactly who is responsible. If not, you really should have.

Really, really, really great advice!

Unfortunately, the contractor usually gives you a contract and says "sign it or forget it."

Most 'Mericans can't read very well and would be too lazy to read any contracts even if they were in fact literate. So, they just sign. The gubmint probably "took care of them." No worries.

Most contractors wouldn't even consider a client supplied agreement. So, maybe boaties should just have a much bigger DIY library in their boats.

[weavis]

Originally Posted by Dockhead

Even short term delivery captains on a pleasure yacht? Irrespective of what is said in a contract with the owner? Remember we don't know what the contract said (if any was signed). Maybe you're right; I'm not a maritime lawyer (still regret missing those classes in law school!), but I would check.

I would be surprised if it is that simple, and if it is, then it is very different from ordinary civil situations, where as I'm sure you know, the determination of what makes an employment relationship versus an independent contractor relationship can be fairly complicated and is often ambiguous.

In either case, however, I think it is fairly clear that ordinary risks of the operation of the vessel belong to the owner. Just because some damage occurred while a hired delivery captain was in charge does not necessarily make him responsible for it. Depending on what is in the contract, and what is the nature of the relationship, the captain would have to be acting outside the scope of his assignment (e.g. he had taken a detour to visit his girlfriend), and/or with some degree of negligence, probably gross negligence, before the damage becomes his responsibility.

To those insisting on bonding and insurance for the captain -- just try it in real life. This is a question of risk management and insurance cost. I doubt many delivery captains will sign a contract which means that they will have to sell their house in case the vessel is wrecked, and as someone else mentioned, specific insurance for delivery captains may be unreasonably expensive. In most cases I think this is an ordinary risk of the vessel which is most efficiently covered by the owner's own insurance. If he doesn't like the high deductible, he can change it. Or -- a reasonable compromise might be to agree with the captain that if something happens due to his ordinary negligence (probably a lower standard than would otherwise apply), the captain will reimburse the deductible.

But if something happens which was not caused by anyone's carelessness -- and sometimes boats get caught by unexpected gusts, for example, and there is just nothing you can do about it -- then the owner needs to stop looking for someone to transfer the risk to.

It has to be a "hold no harm" agreement. Or pointless a delivery captain taking on the risk. He could be liable if the vessel has an unstated fault or known faulty part to the owner but not disclosed to the captain.

If I as a delivery man use my vehicle, and my equipment, then I carry insurance.

If I as a delivery captain use your boat for you, it has to be your insurance for the vessel and liability. Now I can elect to have my own insurance and indemnity....... in my view, not a good thing. An unscrupulous owner can and WILL sue even if the event is not the captains fault.

People approach this matter in different ways. Crap happens. Delivery captains will tell of trips where the vessel had to be put into a marina for repair, they had to fly home and then fly back several weeks later to continue the trip. the VESSEL owner carries the repairs and the cost of flights. The Captain is not blamed for issues that arise in transit.... he reports it and the VESSEL owner coughs up.

If a Captain hits something...... well he hits something. Thats the VESSEL owners risk in hiring anyone or letting anyone steer the vessel. Unless he has a written contract otherwise.

Pay up AND .......... take the boat yourself next time.

[rgscpat]

Isn't one of the traditional tests of employer versus contractor status the degree of control and supervision of the employee by the employer?

I'm imagining a case in which the owner were to be on board and to be micro-managing every tiny detail of the voyage might perhaps tend toward creating an employee-employer relationship no matter what the contract says.

At any rate, the distinction doesn't seem to matter in this case; the owner learned a relatively cheap lesson, by boat standards.

I wonder how much more financially perilous life could be for owners who contract delivery captains if they had to comply with all safe workplace requirements and were responsible for boat defects that might risk the safety of a boat or its crew.

[Jammer Six]

Originally Posted by boatman61

Cheaper than me then.. but I like that bit of paper to cover my ass.. also.. if the owners not prepared to sign it.. its a fair bet his intention is to try and screw me.

I was a general contractor, I lived and died by firm bids and what my contract said.

There are two extremely important points that a written contract takes care of, no matter who you are.

One, it protects both parties from the poor memories of honest men, and two, if your meeting of the minds is not genuine, trying to write it down as a list will quickly reveal that.

[BandB]

Originally Posted by Jammer Six

I was a general contractor, I lived and died by firm bids and what my contract said.

There are two extremely important points that a written contract takes care of, no matter who you are.

One, it protects both parties from the poor memories of honest men, and two, if your meeting of the minds is not genuine, trying to write it down as a list will quickly reveal that.

Absolutely. I don't deal without written contracts. I have a contractor who remodeled my home before I moved in and has done several projects. I trust him highly. Still every project has a contract. It limits the liability of both parties.

Take now the case of an independent delivery contractor. It's not just boat damage. What if he or his mate gets injured? Does he carry insurance or are you responsible for those?

However, in this case the contract still only impacts the owner's relationship with the contractor. In no way does it change the owner's liability to the other boat. Boat A owner liable to Boat B owner. Captain A may or may not be liable to Boat A owner, depending on contract and on nature of damage. In ordinary case, or absent contract, would not be. Normal risk.

Now independent captains should carry liability insurance to protect themselves. An owner should carry liability insurance to protect both himself and any crew.