Assistance Liability

[Mark Laurnen]

Hello all. Having followed the recent thread regarding liability in the event owner unauthorized service performed by Tow Boat, another long-standing concern comes to my mind. What thoughts should go into the decision to render towing assistance if requested to do so? In the PNW, commercial assistance (ie. Tow Boat USA) may not be immediately available. In the absence of threat to life, the CG also seems to deprioritize requests for assistance. Typically, calls to the CG result in the CG broadcasting a plea for any boaters in the area to respond if they are willing, and able, to render assistance. In one instance the CG reported a boat with two aboard, without power and taking on water. After listening for over an hour to repeated CG requests, we pulled up our fishing lines and informed the CG that we were proceeding to the location 15 miles away as quickly as we could. We were 3 miles from the boat in distress when the CG waved us off as a local sheriff’s department had responded. I can only imagine the consternation of the unfortunate boaters. Now, several people have written that the most prudent (legally) response may be to standby until commercial, or governmental , assistance arrives, only intervening if there is true threat to life (eg. Fire or sinking). These authors cite the liability one could assume if not properly trained in towing and damage ensued while towing a disabled vessel. Personally, if I were 15 miles offshore and a Good Samaritan offered me a tow, I can’t imagine ever being anything but eternally grateful. Am I old fashioned and foolish in this litigious modern world? Ironically, as a physician I am out on my boat to escape this everyday shadow hanging over me at work.

 

[Gdavid]

I have no control over what someone may choose to sue me for, so I largely disregard that factor and just follow my conscious. While minimizing my involvement in an emergency situation may limit my exposure to liability, I am always subject to my own judgement over my actions and would struggle to sleep at night if someone perished due to my unwillingness to get involved.

That said, your abilities in open water are often limited, bringing two boats into close quarters in open water is a potentially dangerous situation in the best of conditions. Stay within your own abilities and just being on site can be a tremendous calming effect on the vessel in peril.

Traditionally, many boaters work their way up in vessel size and honed their skills on skiffs or small trailered boats prior to operating a more substantial craft such as a recreational trawler. Before Boat US and Sea Tow became as prevalent as they are today, it was quite common to tow a fellow boater back to the boat ramp or local marina. Fortunately, boats tend to be a bit more reliable these days, but you also have new owners, with relatively less experience jumping into relatively large boats and coastal cruising having never owned a boat. The usefulness of a couple who struggles to dock their boat in benign conditions in an emergency situation is probably quite limited.

I've towed boats in on several occasions, pulled off a couple of soft groundings and provided fuel to boats with empty tanks but all in pretty protected settings and I never felt I was pushing my luck. Each situation needs to be considered uniquely.

 

[kthoennes]

I happen to be married to an insurance company attorney so we're more conscious of these issues than most, but I'm still a traditionalist when it comes to responding to distress calls. I can be sued if somebody slips on a pickle I discarded in a McDonald's parking lot. That's the practical legal reality in the U.S. Whether the suit has any merit is a different matter of course, and some states have "good Samaritan laws" -- and just for kicks I'll paste South Dakota's below -- but you can see how the last sentence still opens the door for all kinds of claims. And we have an good umbrella policy. But all that aside, I'm old school, I'm not going to leave somebody in danger when I can assist.

20-9-4.1. Immunity from liability for emergency care--Exception.

No peace officer, conservation officer, member of any fire department, police department and their first aid, rescue or emergency squad, or any citizen acting as such as a volunteer, or any other person is liable for any civil damages as a result of their acts of commission or omission arising out of and in the course of their rendering in good faith, any emergency care and services during an emergency which is in their judgment indicated and necessary at the time. Such relief from liability for civil damages extends to the operation of any motor vehicle in connection with any such care or services.

Nothing in this section grants any relief to any person causing any damage by his willful, wanton or reckless act of commission or omission.

 

[Mark Laurnen]

Assistance liability

I appreciate your comments. I agree that we can only really control our own actions, that it’s generally best to “do what’s right”. Medically, I see no conflict what do ever. Boat wise, I guess I would ask the needy skipper to at least verbally acknowledge that they would accept unintended property damage should it ensue. Of course, knowing one’s limits is common sense … I probably would not attempt to tow a 75’ boat with my 31’, and I wouldn’t tow anything across a bar. I would imagine that anything towable would also be possible to anchor closer to shore. Thanks again.

 

[DavidM]

There is the “Good Samaritan” legal principle. It means if you render assistance in a dire circumstance to someone else, generally you can’t be held liable if things go south, even if you are the one who causes it to go south.

Usually the liability limit has limits as to time and exigent circumstances. If you attempt to tow someone away from a reef and your tow rope breaks, you are not liable. But routine towing that could have been done by Tow Boat US then if your tow rope breaks as you maneuver into a marina, maybe yes.

But heck, I am no lawyer.

David

 

[psneeld]

https://www.pdbmagazine.com/2018/09...acted under the same or similar circumstances.

"The Federal Boating Safety Act says: “Any person…who gratuitously and in good faith renders assistance at the scene of a vessel collision, accident or other casualty without objection of any person assisted, shall not be held liable for any act or omission in providing or arranging salvage, towage, medical treatment, or other assistance where the assisting person (s) acts as an ordinary, reasonable prudent person would have acted under the same or similar circumstances."

Read the last line carefully....... classic example of how easily you can be drug into court and anybody with professional experience could show where you could be put on the spot if anythong goes wrong.

 

[Duke 239]

https://www.pdbmagazine.com/2018/09...acted under the same or similar circumstances.

"The Federal Boating Safety Act says: “Any person…who gratuitously and in good faith renders assistance at the scene of a vessel collision, accident or other casualty without objection of any person assisted, shall not be held liable for any act or omission in providing or arranging salvage, towage, medical treatment, or other assistance where the assisting person (s) acts as an ordinary, reasonable prudent person would have acted under the same or similar circumstances."

Read the last line carefully....... classic example of how easily you can be drug into court and anybody with professional experience could show where you could be put on the spot if anythong goes wrong.

I think you are reading too much into that last line. The plaintiff has to argue that you acted abnormally, unreasonably, or imprudently. The judge will decide if the plaintiff has proved that assertion. Most judges have boats.

 

[CaptTom]

I'll render aid if I can, and stand by if I can't.

I won't let the lawyers discourage me from doing the right thing.

 

[Duke 239]

After listening for over an hour to repeated CG requests, we pulled up our fishing lines and informed the CG that we were proceeding to the location 15 miles away as quickly as we could. We were 3 miles from the boat in distress when the CG waved us off as a local sheriff’s department had responded. I can only imagine the consternation of the unfortunate boaters.

I wouldn’t worry too much about your liability. I would worry instead about folks interpreting your account as “after neglecting my duty to render aid for over an hour, we pulled up lines, notified the CG and headed toward the disabled vessel.”

 

[Portage_Bay]

In the for what it's worth column. Decades ago I assisted vessels in distress all the way to the dock. In more recent years I take a different approach. I stop short of entering the marina and stand by waiting for qualified towing assistance. I've towed them out of harm's way and avoided the risk of close quarters maneuvering with a boat under tow or alongside. Of course if there was a threat to life I would not hesitate to do anything I could.

 

[Mark Laurnen]

Thank you. Duke 239 ... let me paint the rest of the picture. I was fishing off Henry Island on the NW corner of San Juan Island. The boat in distress was IN Friday Harbor just off the Univ. of Wash. Marine Lab. It was, admittedly, early in the morning, but I couldn't believe no one closer responded. We were an hour away at my cruising speed ... the eventual responder was a San Juan County Sherriff's Dept. rescue boat (with a pump) docked a half mile from the sinking boat. I am surprised the distressed party did not just call 911, unless neither person owned a cell phone. I am likewise surprised the CG didn't just pick up a land line and call the Sherriff's dept. directly. Obviously, if a boat was far from likely assistance I would have responded after receiving the first CG transmission.

 

[SeaDogAK]

I live in SE Alaska where there is no Towboat US and help is often far away. I can’t imagine not helping someone out of fear of liability, and I think most (all, I hope) boaters here feel the same way. If someone needs help you help them.

 

[artfulltune]

Hello Mark, "I've towed boats in on several occasions, pulled off a couple of soft groundings and provided fuel to boats with empty tanks but all in pretty protected settings and I never felt I was pushing my luck. Each situation needs to be considered uniquely".

Using an excellent reference from the famous crooner of yore, "I gotta be me"

 

[psneeld]

I think you are reading too much into that last line. The plaintiff has to argue that you acted abnormally, unreasonably, or imprudently. The judge will decide if the plaintiff has proved that assertion. Most judges have boats.

Having been deposed and questioned by law enforcement on many an issue....the amount of knowledge varies as greatly between every level of the court from the judge to the expert witnesses to the plaintiff and defendant.

No, most people including the vast majority right here on TF do not know what is what a reasonable person would/should do when towing another boat, the proper equipment, procedure, etc..... They just don't have a lot of experience in that arena and because there is no clear standard of care outside of professional towing, it is easy to move the bar depending who all is involved.

Depending on who is called as expert witnesses....they can sway the case dramatically and that can be seen in the vast majority of suit awards and then their appeals if they get that far.

I remember being deposed by couple of the top personal injury lawyers in Atlantic City. They grilled me and tried to twist me by tripping me up by reading and forming questions straight out of the NAVRULES book. They kept trying to get me to agree with their "premise" of what happened and who was responsible. They may have not known that was not going to work on me as I had been teaching captains licensing for 8 years and they hit on my specialty of knowing the book pretty well. I also had experience being questioned in a lot of fisheries cases when I was in the USCG so I was trained how to answer. Had they been deposing many of the captains I worked with, while they were still great captains, they wouldn't have probably been able to tell the lawyers which section of the book to turn to for the applicable or exact rule which kinda made the lawyers look "not prepared well enough".

It wasn't so much that I knew the book so well, it was the appearance of making the lawyers seem like the were scrambling for something to prove their case. The lawyer working with me laughed all the way out of the building saying how bad the looked....and while they settled with the other defendants in this case, the only defendant*that won was who I testified for.

I'm not saying it was all me, but ultimately it was who the lawyers used to describe what exactly was expected of all the parties involved....and whether "reasonable" care was taken or not.

So when in doubt, unless you are really sure of yourself, be careful towing as a lot of things can go wrong. It's true that most of the time they don't and the Good Samaritan laws will protect you to a point. There's always that one time, that one jerk who sues, that one lawyer that's better, etc.....

 

[Gdavid]

Last December, while participating in a lighted boat parade, I ended up towing a boat in very benign conditions, but it was somewhat humorous. A walkaround style fishing boat, with twin outboards had lost steering and was wandering back and forth across the creek between boats participating in the parade. As I approached, I heard them yelling for help, nothing over the radio but begging for a tow. At least half of the voices onboard the disabled vessel were significantly slurred, the steering system may have run dry, but the crew had not.

Private docks line this small and protected creek, if the "captain" of the disabled vessel left the boat in neutral, they would have drifted out of traffic and been able to secure themselves to a private dock, they also could have anchored and just presented themselves as a stationary obstruction. Instead, the "captain" chose to attempt to maneuver close to the parading boats, asking each for a tow in, alternating between moving ahead and moving astern. He also could have waited for the traffic to subside and maneuver back to safety using his twin engines to steer, unfortunately was not making smart decisions. Also, among the voices was that of a frustrated and cold wife, probably the most sober. Her desperation to depart this ship of fools was clear.

I had to decide pretty quickly on my course of action, I had about 6 boats behind me in the procession, stopping would involve 6 boats passing me as I attempted to get this disabled vessel under tow. On the other hand, leaving him to his own fate presented the continued hazard of his erratic maneuvers. Deale is a pretty small Harbor, approximately 200' between the docks on either side of the main creek. The boat behind me was a twin-engine sportfish, I had been near it all night and it appeared to be very smartly piloted, so I turned the deck light on my bridge to illuminate myself, motioned to the disabled vessel and yelled that I was stopping to assist, this seems quicker than raising him on the radio and he promptly adjusted course to pass me, and the remaining boats followed him. The disabled boat was drifting towards me, would have been within reach of a heaved line but the fool kept alternating between forward and reverse. I finally convinced him to stay in neutral and was able to bring him under tow, turn around and head to the nearest fuel dock with a nice easy approach.

His wife was thanking us profusely as they finally assumed a steady heading and resolution seemed at hand. Shortly before they landed, one of their crew hailed a request, "can you turn around and take us to Skipper's Pier, I think their bar is still serving?" I ignored this request.

 

[psneeld]

Had more than one tow when assistance towing that I think was because the member was leaving a bar and felt like it might be a bad idea to drive home themselves.

 

[CaptTom]

... I stop short of entering the marina and stand by waiting for qualified towing assistance. I've towed them out of harm's way and avoided the risk of close quarters maneuvering with a boat under tow or alongside. Of course if there was a threat to life I would not hesitate to do anything I could.

Of course you shouldn't do anything you don't feel safe doing. In some cases I might take your approach.

But I'd feel pretty bad leaving someone to pay for a commercial tow if I had the ability to get them to a place where they didn't need it. Even if it's not their home slip, if you at least get them to a fuel dock or something they can figure out how to get the rest of the way without incurring a towing bill. There's usually someone on the dock who can help. I've shouted out to enlist the help of people fishing off piers or the bank if the disabled boat needed it.

It's really just the Golden Rule. I'd offer whatever assistance I'd hope would be offered to me in a similar situation. If I'm sued for that, I'll deal with it.

 

[rslifkin]

I agree, if I can safely place a boat on a dock of some kind, I will. If it's windy or some other factor means I'm not sure I can get them docked safely, then I'm not going to try.

 

[Shrew]

To me I take a fairly straightforward approach. I'm responding to safe life and limb. I'm not responding to salvage your stuff. If you want off of your boat, or out of the water...I'm your man. If you want a salvage or a tow, then we're going to wait for salvage and towing company to respond or watch her sink.

I don't care about you trying to sue me, what happens when I pull a cleat? Are you paying me? What happens when the other guys crappy cleat let's go and it sling shots into my wife's head??

 

[psneeld]

I can see where assistance towing is scarce, unreliable or non-existent.... helping others still come naturally like it did for all in the old days of boating.

But for the last 20 years or so, in FL and NJ, the vast majority of boaters I have come across feel that joining an assistance towing outfit is the only way to go...mainly because of the horror stories of people offering to tow someone and they turn out to be a danger to themselves and the person they are trying to tow.

Even here on TF the advice often given to people asking about their first big trip or relocating a newly purchased boat is "get a towing membership". So a lot of people are leaning towards only let the pros do it if you can.

Asking for help when you get to the dock could be the weakest part of the defense if you get sued. They are often as bad as the people on the towed vessel.

I often had people cast off my tow (even when told not to) many feet from the dock and the wind and current were going to cause havoc in now congested areas except that was one of the first things I learned to be prepared for. If they cast off and smash another boat, especially when people on the dock didn't do what they were supposed to...whether you like it or not, good chance you are now in the midst of litigation.

 

[CaptTom]

Sigh. I'm glad I spend most of my time in places where decency is still valued.

 

[psneeld]

Sigh. I'm glad I spend most of my time in places where decency is still valued.

It's not about decency.

 

[CaptTom]

It's not about decency.

My point exactly.

 

[psneeld]

Not sure you know what I meant.

People don't tow as often when for $179 in many places a company will do it better and safer. And not risk being sued by people.

The quick to sue are the people I would possibly consider "indecent".

In that case I won't tow either unless its a last option and I would call that common sense in light of everything.

I wouldn't say there are "more" decent people living elsewhere just because they will tow without concern.

 

[Bacchus]

It's not about decency.

Scott
I agree and inland it seems to be a different environment... to some degree.
On a different butbrelated topic I'd be interested in your experienced perspective...
As a USCG licensed capt. Mynundrrdtanding is they are obligated to respond to distress calls - truenor not? And then are they held to any different standard or expectation of knowledge when providing assistance?
Thanks... appreciate any insights from your experience

 

[psneeld]

Scott
I agree and inland it seems to be a different environment... to some degree.
On a different butbrelated topic I'd be interested in your experienced perspective...
As a USCG licensed capt. Mynundrrdtanding is they are obligated to respond to distress calls - truenor not? And then are they held to any different standard or expectation of knowledge when providing assistance?
Thanks... appreciate any insights from your experience

Heck, who knows in this country.... seems like new law is written with every court case.

1. 46 U.S. Code § 2304 - Duty to provide assistance at sea
- (a)
(1)A master or individual in charge of a vessel shall render assistance to any individual found at sea in danger of being lost, so far as the master or individual in charge can do so without serious danger to the master’s or individual’s vessel or individuals on board.
(2)Paragraph (1) does not apply to a vessel of war or a vessel owned by the United States Government appropriated only to a public service.
(b)A master or individual violating this section shall be fined not more than $1,000, imprisoned for not more than 2 years, or both.

So yes we are all supposed to help where we can, but only if not endangering out vessel or crew/passengers. Responding to close by incidents would certainly be expected, but how distant before you don't respond is why skippers are supposed to have something on the ball.

As to being held to a higher standard? Sure when operating under that license they are. Now if on a recreational vessel, my cut is if they are the operator....sure they should know more or better than the typical recreational skipper. But if just a passenger on another vessel...it might be hard to hold them to a higher standard...it again just depends.

So my thoughts about Good Samaritan protection is such that if a lawyer can show where you knew something was possibly going to go wrong and it does, I doubt Good Samaritan legislation will protect you. Like trying to unground a boat with 3/8 dockline and it snaps and hurts someone, or trying to tow from a stern cleat you have no idea whether the backing plate is adequate.

Probably could write a book on the subject but I won't...but will try and answer any reasonable question or hypothetical.

 

[SoWhat]

Massachusetts Good Samaritan Statute
112 MGL 12V; Any person who, in good faith, attempts to render emergency care including, but not limited to, cardiopulmonary resuscitation or defibrillation, and does so without compensation, shall not be liable for acts or omissions, other than gross negligence or willful or wanton misconduct, resulting from the attempt to render such emergency care.

There are several other versions covering specific scenarios but it is clear that unless it is an emergency you are on your own. Running out of gas or running into a sandbar at high tide does not constitute an emergency in my opinion.

I am more than happy to give you the local SeaTow phone number and you can arrange for a private tow. If water is pouring in over the stern, then you are in an emergency situation.

 

[CaptTom]

I wouldn't say there are "more" decent people living elsewhere just because they will tow without concern.

No, there aren't more decent people because they will tow. Being willing to help others is just one consequence of having more (a higher percentage of) decent people.

People in more populated areas get sort of hardened to the negatives of dealing with crowds. You have to treat everyone with suspicion. In more rural areas it's easier to see you fellow human beings as individuals.

 

[psneeld]

Being cautious has nothing to do with decent... which is what my point was before.

Call me cautious.... but don't dare say I am not or less decent.

 

[phillippeterson]

To me I take a fairly straightforward approach. I'm responding to safe life and limb. I'm not responding to salvage your stuff. If you want off of your boat, or out of the water...I'm your man. If you want a salvage or a tow, then we're going to wait for salvage and towing company to respond or watch her sink.

I don't care about you trying to sue me, what happens when I pull a cleat? Are you paying me? What happens when the other guys crappy cleat let's go and it sling shots into my wife's head??

Couldn't have said it better.