Litigating Recreational Boating Accident Cases, 0321 SCBJ, SC Lawyer, March 2021, #34

• Author: Samuel R. Clawson, Jr., Christy R. Fargnoli and Bert G. Utsey, III
• Position: Vol. 32 Issue 5 Pg. 34

Litigating Recreational Boating Accident Cases

Vol. 32 Issue 5 Pg. 34

South Carolina BAR Journal

March, 2021

Samuel R. Clawson, Jr., Christy R. Fargnoli and Bert G. Utsey, III

The state of South Carolina has more than 8,000 miles of river, 460,000 acres of lakes, and 3,000 miles of coastline.^[1] These natural resources are used every day by thousands of recreational boaters for fishing, water sports, hunting, and pleasure boating. As of 2018, active vessel registrations in the state included nearly 350,000 boats and 30,000 personal watercraft.^[2]

Recreational boats have no seatbelts, no airbags and no brakes; Moreover, they are often operated by individuals without appropriate education, training, and experience. Recreational boating accidents frequently result in serious injuries and deaths.^[3] There have been more than 120 recreational boating accidents every year in South Carolina for the past five years.^[4] These accidents have resulted in 13 or more fatalities in each of those years.^[5]

In 2019, the most recent year for which statistics are available, there were 141 recreational boating accidents involving a total of 197 vessels, resulting in 75 injuries and 15 deaths.^[6]

Recreational boating accidents frequently result in civil litigation. This article discusses common factual scenarios associated with recreational boating accidents, admiralty jurisdiction and the general maritime law, the role of maritime safety experts in litigation, the applicability of commercial and homeowner’s insurance policies, and waivers and releases that often arise in the context of litigating recreational boating accident cases.^[7]

I. Common factual scenarios associated with recreational boating accidents

Recreational boating accidents often involve small boats or personal watercraft that are either owned or rented by the operator. The National Marine Manufacturers Association reported that retail sales of new recreational boats in 2019 were approximately 280,000 vessels nationwide, the second highest total since 2007.^[8] Furthermore, an estimated 975,000 pre-owned recreational boats were sold in 2019.^[9] In other words, there are more privately owned boats on the water now than at any other time in the past decade.

However, recreational boat owners are not the only ones out on the water. Tourism is one of South Carolina’s leading economic sectors. South Carolina annually receives more than 33 million domestic visitors, many of whom avail themselves of the state’s natural resources.^[10] This frequently comes in the form of recreational boat and personal watercraft rentals from numerous businesses operating in coastal towns and on lakes in South Carolina.

Nationally, the most common types of accidents are collisions with other recreational boats, collisions with fixed objects (allisions), groundings, fooding/swamping, and falls overboard.^[11] Open recreational boats and personal water crafts are the vessel types with the highest casualty rates.^[12] The most common contributing factors to these recreational boating accidents are operator inattention, improper lookout, operator inexperience, excessive speed, alcohol use, and navigation rules violations, all of which relate to improper operation of the vessel.^[13] Notably, in South Carolina, just three of our 46 counties (Horry, Charleston, and Beaufort) accounted for more than 50% of the recreational boating accidents in 2019.^[14] This is not surprising given the location, population density, and high rates of tourism in these counties.

II. Admiralty jurisdiction

Federal law provides the basis for admiralty jurisdiction. United States Code § 1333 provides, “The district courts shall have original jurisdiction, exclusive of the courts of the States, of [any] civil case of admiralty or maritime jurisdiction, saving to suitors in all cases all other remedies to which they are otherwise entitled.”^[15] The first clause of the statute allows federal courts to hear matters in admiralty without a federal question, diversity of citizenship, or the requisite amount in controversy. The second clause of the statute, often referred to as the “Saving to Suitors” clause, generally gives state courts concurrent subject matter jurisdiction. As such, admiralty claims may be brought in either federal or state court. Furthermore, if a claim for relief is within the admiralty or maritime jurisdiction and also within the court’s subject-matter jurisdiction on some other ground, the pleading may designate the claim as an admiralty or maritime claim.^[16]

Determining whether a claim is “in admiralty” involves the evaluation of multiple factors. Generally speaking, the matter must have a connection to a vessel, occur upon navigable waters, have an impact upon maritime shipping and commerce, and be related to traditional maritime activity. “Vessel” has been defined as “every description of watercraft or other artificial contrivance used, or capable of being used, as a means of transportation on water.”^[17] This requirement is met by recreational boats and personal watercraft. “Navigable waters” include those areas seaward of the mean high-water mark of tidal waters, as well as inland rivers that are navigable in fact—meaning that they can be used in their ordinary condition as highways for commerce. South Carolina’s coastline, harbors, and bays are navigable waters, as are those rivers and lakes, which are seaward of dams without locks and the fall line. However, most of the rivers and lakes in the upstate of South Carolina will not meet this requirement. As a result, personal injury claims arising at those locations will not be “in admiralty.” The requirements that the matter impact upon maritime shipping and commerce and bear a relationship to traditional maritime activity (frequently referred to as having a maritime nexus or maritime favor) is typically met in the context of a recreational boating accident. Whether or not a claim falls “in admiralty” impacts the substantive law to be applied, as further elaborated on in the following section.

There is no venue requirement for actions brought in admiralty in federal court, and venue will generally be proper as long as the court has personal jurisdiction. However, it should be noted that there are federal statutes that permit transfer of venue to a proper or more convenient district or division.^[18] Claims fled in state court are subject to South Carolina’s venue laws.^[19] In cases involving an individual defendant, that typically means fling in the county where the defendant resides at the time the cause of action arose or the county where the most substantial part of the alleged act or omission giving rise to the...