Thursday, January 28, 2016

Contemplating the sailing log canoe, a wake and the wet judge.

The winter months provide us time for vessel repairs, and reflection on how to become better boaters. As a lawyer, I tend to focus on risk-- the chance my activities might inconvenience or injure others and their property, or how the activities of others might impact me. Vessel operation has been widely discussed in the news over the last year, as Maryland set new records for boating fatalities and accidents.

It was an excessive wake case that caught my attention. I am less interested in the many reported cases involving intoxicated operators, perhaps because I see that as an intentional act of impairment that is readily avoided. But the excessive wake case falls in the category of bad things that can easily arise from innocent operational error. I know that I will not operate a boat while intoxicated, but I might certainly slip up and generate an excessive wake once in awhile. Aside from incurring the anger of nearby boaters, is there a greater risk?

Chesapeake Bay Log Canoes
In a widely reported case, a 58 foot cabin cruiser allegedly raced through a log canoe race course on the Chester River last July. A wake of two to four feet caused two log canoes to capsize- one of which belonged to a retired judge (read this Coastal Living article to learn about Chesapeake Bay log canoe sailing). The canoe reportedly suffered $1,800 in damage. The judge’s call to the State’s Attorney triggered an investigation by the DNR, which ticketed of the cabin cruiser’s operator. The operator hired a lawyer and took the case to trial in December, where he was found guilty of negligent operation and fined $320. After trial, he was offered probation before judgment—a deferred judgment that is not a conviction. 

The State’s Attorney issued a press release trumpeting the victory, not because it was such an important case in the grand scheme of criminal law, but because of the infrequency of trials on such issues. Or maybe that’s how to announce conclusion of a case involving a wet judge. The operator reportedly defended the case by claiming no knowledge of the race in progress, or the presence of the canoes in the area. A race tender had blasted a horn and signaled, but the operator claimed to have misinterpreted the signals, and simply made a slight course correction. But what if the case involved more than a capsized canoe, and the dunking of a retired judge? What if the 58 foot cabin cruiser had caused serious bodily injury or death? Imagine if the crew of the two canoes had drowned? 

There are at least two statutes for that situation. A vessel operator who causes death can face charges of manslaughter by vehicle or vessel, and criminally negligent manslaughter by vehicle or vessel. They sound very similar, but they are very different. 

The crime of manslaughter by vehicle or vessel requires proof of “gross negligence.” To obtain a conviction, the prosecution must show that the vessel operator was conscious of the risk to human life posed by his conduct, and he acted with “wanton or reckless disregard for human life.” This law has been around since 1941, and was extended to cover operation of boats in 1949. It is a felony and can be punished by up to 10 years in prison and a $5,000 fine. 

Criminally negligent manslaughter by vehicle or vessel requires proof of “criminal negligence.” The prosecution must show that the operators conduct created a “substantial and unjustifiable risk” to human life and that the failure to perceive that risk was a “gross deviation” from the standard of care that a reasonable person would exercise. This is a relatively new law, adopted in 2011. It is a misdemeanor and can be punished by 3 years in prison and a $5,000 fine. 

You can see that ordinary manslaughter is the more serious crime. It is more serious because it is charged where the operator is conscious of the risk posed by his boating operation. The criminal negligence statute does not require this recognition. It requires only that the operator should have perceived the risk, and that his conduct was far outside the boundaries of safe behavior, and thus the lesser penalty of 3 years. The operator convicted of criminal negligence also avoids the “felon” label, and retains the right to vote and to bear arms under the Second Amendment. 

We now turn back to the case of the wet judge and his sunken canoe. If the operator of the 58 foot cabin cruiser had no appreciation for the risk created by his four foot wake, it is unlikely he could have been prosecuted for ordinary manslaughter. But if the testimony at his trial revealed an exclamation like “I don’t care, let’s tear this up,” or words to that effect, then a four foot wake that capsized a canoe to cause a drowning would certainly support an ordinary manslaughter charge. I would estimate that the operator of the cabin cruiser spent at least $1,500 or more to defend the negligent vessel operation case, in addition to the $320 fine. Defense of a case involving death will cost you exponentially more, including your reputation and standing in the community. It really is much easier to throttle back, take in the sights, and give your neighbors a friendly wave.

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