This case involves the collision of two recreational vessels in dense fog while underway in the Gulf of Mexico off the coast of Naples, Florida. The Court conducted a one-day non-jury trial to determine who was at fault for the collision.
One of the boats was a 34-foot Pursuit and the other was a 24-foot Boston Whaler. Both vessel owners filed limitation of liability actions. Allstate insured the 24-foot Boston Whaler and filed a claim against the driver of the Pursuit to recover money it had paid to fix the Boston Whaler. The driver of the Boston Whaler was doctor and filed a personal injury claim asking for hundreds of thousands of dollars in damages.
The only issue at trial was who was at fault for the collision. Four people testified:
Driver of the Pursuit
Driver of the Boston Whaler
Navigational Expert for the Pursuit
Navigational Expert for the Boston Whaler
The driver of the Boston Whaler was the sole occupant whereas the Pursuit had two persons onboard. The day of the collision started out as a nice sunny day. Weather conditions changed for both vessels leading to dense fog at the time of the collision.
The Boston Whaler averaged about 30 mph while traveling through the Gulf of Mexico. The driver went all stop when she initially encountered the shut out fog but resumed speed getting up to 36 miles per hour at least twice before impact. GPS showed her going 29 mph at collision.
The Pursuit was going 10 mph at all material times. When the Pursuit encountered the fog the driver turned over operation of the vessel to the passenger. The driver did this to start the process of turning on the navigation lights. After turning on the lights, the driver/owner stood near the passenger to help maintain a lookout.
It was undisputed that both vessels failed to sound fog signals in violation of the Navigation Rules. At approximately 5:41 p.m., both vessels collided. The collision took place outside the demarcation lines - dividing the high seas from the inland waters of the United States. Approximately three seconds before collision, the Pursuit saw the Boston Whaler on a plane, throttle wide open, coming out of the fog directly at the Pursuit.
The driver of the Boston Whaler testified that just prior to collision she saw the Pursuit veer to port and basically cut across her bow. The driver also testified that the Boston Whaler’s speed of 29 miles per hour, was a “slow” speed, and appropriate for what she needed to do at the moment. The court did not credit any of this testimony.
At trial, both drivers blamed each other for the collision so the court was forced to sift through the competing negligence allegations.
The court determined that the sole proximate cause of the collision was the Boston Whaler operating at an excessive speed. The court rejected the testimony from the Boston Whaler's driver and expert. Here is a notable paragraph crticizing the Boston Whaler's expert:
Captain Stoller [Boston Whaler’s Navigational Expert] is clearly qualified to state an opinion based on his many years of experience and prior testimony as an expert witness. While the Court accepts some of these opinions, the Court finds many are unreliable, are based upon incorrect factual assumptions, or are simply wrong. Captain Stoller has not been a captain of a seagoing vessel for over thirty years. He stopped publishing over a decade ago, concentrating on being a consultant and expert witness. He applied the wrong "Rules Of The Road" to his analysis of the case, insisting the Inland Navigation Rules applied because the collision was a mile from shore. Application of the Inland Navigation Rules depends on demarcation lines, not simply mileage from shore, even if this collision had been a mile from shore. Additionally, as discussed below, some of Captain Stoller's opinions are at odds with the clear language of the COLREGS or are not supported by credible facts, or both.
At trial, the Boston Whaler's driver claimed the Pursuit’s occupants were drunk. The court rejected this allegation and found that alcohol consumption played no role in the accident.
The Boston Whaler's driver also pointed to the Pursuit's testimony establishing that one of the drivers of the Pursuit was not familiar with the Rules of the Road. The Boston Whaler claimed this fact should trigger the application of the Pennsylvania Rule against the Pursuit. The court disagreed, finding that the Pursuit’s driver neither did something, nor failed to do something, which contributed to the collision.
The court found that both the Pursuit and Boston Whaler maintained a proper (although unsuccessful) lookout leading up to the collision.
The court found that Pursuit’s speed of 10 miles per hour was safe and the Boston Whaler's speed of 29 miles per hour was unsafe. So the Boston Whaler violated Navigation Rule 6 (Safe speed) and the Pursuit did not.
The court found the Boston Whaler failed to use all available and appropriate means to determine if risk of collision existed and failed to take action to avoid collision in violation of Navigation Rules 7 and 8.
Although it was undisputed that the Pursuit was not sounding the required fog signals in violation of Navigation Rule 34(d), the court found that this violation did not impact the collision because it found the Boston Whaler could not have heard it given the speed the Boston Whaler was traveling (29 miles per hour).
In sum, the court found that the Boston Whaler was solely at fault for the collision and dismissed all claims against the Pursuit.
Here is a PDF to the decision:
Please feel free to reach out at (504) 553-1435 or ad@adamdavislawfirm.com if you have any questions or would like to discuss.
Thanks,
Adam Davis
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