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This is a somewhat typical boat collision reconstruction case which went to trial resulting in a plaintiff verdict. As with several other cases, I constructed scale models of the vessels involved for use at deposition and in court. This case also required the use of a scale figure of the operator of the jon boat to indicate how he was pitched into the water as a result of the collision.

I. Facts:

1. Per State Boating Accident report , on Sunday 16 September, at 1430 hours on Monroe Reservoir, Polk County, a 43′ Black Thunder, 1998 Sport Cruiser power boat owned and operated by Js collided with a 12 foot Delta jon (john) boat owned and operated by MD.

2. There were no occupants in the jon boat save the operator. The Black Thunder had the owner/operator aboard along with his wife Dh. A father and son, Jy senior and junior were the only witnesses questioned by the DNR officers. The Gys had been riding their PWC with the son driving on a course parallel to and in front of the sport cruiser at the moment of collision. The Gys both report seeing MD on the left side of the sports cruiser as they (Gys ) ran along the right side about 100 yards distant from the sports cruiser. The Gys state that they were concerned that the MD  craft and power cruiser were on a collision course.

 3. The Js’ boat did collied with MD, knocking him into the water, breaking a number of his right ribs and causing a laceration on the right rear of his head. At this point Mr. Gy Sr. entered the water to retrieve the unconscious MD, eventually assisting in placing him aboard the Js’ boat which had turned in response to striking what they believed was an unknown object.

4. Neither Mr. nor Mrs. Js report seeing the MD craft prior to the collision. MD says that he had seen a “cigarette boat” prior to the collision but that at the time of his sighting it was ahead of him, going in his same direction, at a distance of approximately a half mile.

5. Per the Boating Accident Report, on October 2, DNR officer Me, an advanced boat accident investigator, inspected both boats involved in the collision. This inspection revealed a number of items such as hair matching MD’s on the keel of Js’ boat, plus numerous marks and scratches primarily on the keel and port side bottom/hull of the sports cruiser. Based on this initial inspection, it was determined that MD’s boat had been struck at a 30 to 45 degree angle on the right rear. After further detailed investigation, Officer Me calculated that the power cruiser hit the jon boat at a 50 degree angle on the right rear corner. To quote from Officer Me’s report:

“Damages to both boats and the injury to the operator of Vessel #2 (MD) indicate that Vessel #1 (Js) was to the right and rear of vessel #2. Vessel #1 was overtaking Vessel #2 at the time of impact.”

6. Neither Mr. Nor Mrs. Js have taken formal boating safety classes, although Mr. Js said that he had read the State book on boating safety and rules and regulations.

7. Mrs. Js who was seated on the port side of the cockpit reported that she constantly observed boat traffic around their craft. She also states she is familiar with john boats having seen them previously on the lake along with smaller craft such as canoes. She and her husband both report that it was a bright, sunny day with clear weather conditions and not heavy traffic on the lake.

8. Both Js’ were wearing sunglasses, and both report seeing other boat traffic such as personal water craft and sail boats. They both also comment on observing the Gys’ PWC off their starboard side. Both also report noticing a PWC 1000 feet astern of them.

 10.  In her answers to interrogatories (No. 11.), Mrs. Js, who is also a boat operator, states that it is her understanding that larger boats have the right of way. In his deposition, Mr.  Js alludes to this understanding from his reading of State Boating safety materials.

II. Opinions:

1. The Js’ apparently believe that boating laws allow a larger boat right of way over a smaller craft. Per the 2001 Edition of The Handbook of  their state Boating Laws, page 8: “If operating a power-driven boat, you must give way to: Any boat not under command, such as an anchored or a disabled boat. Any boat restricted in its ability to maneuver, such as a boat towing or laying cable or a boat constrained by its draft such as a barge in the river. A boat engaged in commercial fishing. A sailboat under sail in commercial fishing.” In the incident involving MD none of these conditions was present. Per federal, international and state boating and navigation laws, in almost every situation, save those few exceptions of the type indicated above, there is no maneuvering differentiation whatsoever applied to any vessel due solely to its size. In holding this erroneous assumption not only are Mr. and Mrs. Js gravely and grossly wrong, but more importantly they demonstrates a significantly flawed  understanding of boating laws. This skewed perception, when combined with the size, speed and power of the vessels the Js characteristically own and operate, presents an appreciable opportunity for accident occurrence.

2. Mr. Js contends that MD approached from the Js left side, thereby placing the MD craft in a burdened position. Reference to rule 13 of the International and Inland Rules of the Road shows this to be true but only up to the point where a crossing situation becomes an overtaking situation, which actually occurred here, as demonstrated by reconstructing this accident. Per the rules of the road, at a point 22.5 degrees abaft (behind) the beam or line constructed perpendicular to the midship side of a vessel, a craft approaching from the right is considered to be burdened or “give way,” and must safely avoid the vessel it is overtaking. Reconstruction of the collision by a trained DNR accident analysis specialist, definitively proves that the Js boat struck the MD craft at an angle of 50 degrees aft of the starboard or right beam. Hence, this is an overtaking situation and the Js boat is responsible for the collision. Similarly, had the collision occurred at a near 90 degree angle the Js boat would have crossed over the MD jon boat, leaving some indication of this passage such as scrapes on both gunnels (top railing on the sides of the boat) with these marks perpendicular to the gunnels. Also such collisions are almost always marked by highly identifiable cuts made by the striking boats’ propellers. Neither characteristic scrapes on both gunnels nor prop marks are present. Additionally, in near “T-crossing” type contacts of larger, speeding power boats with craft similar to MD’s, the exposed operator is frequently struck and either seriously injured or killed by the other boats’ propellers. This again did not happen here. Rather, the stem or forward segment of the sport cruiser’s bow, which was more parallel than perpendicular to the starboard side of the john boat, overrode and rapidly depressed the starboard rear corner of the smaller craft. This flipped the john boat onto its right side, with its port side elevated and its beam perpendicular to the surface, so that no contact was made with the sport cruiser’s propellers.

 3. Per rule 5 of both the Inland and International rules of the Road, vessels must be operated at all times with a proper lookout. Mr. and Mrs. Js contend that they were in fact diligent in their duties in this regard. Moreover, they claim that MD was in error for not seeing them and that his craft was too difficult for them to see and to notice. Additionally, the Js’ state that the weather on the day of the accident was clear and essentially a good boating day. Mr. Js indicates that a one to two foot chop was running and that the lake was moderately busy. Both Mr. and Mrs. Js comment on two personal water craft encountered on the lake. One, which was carrying Gy and his son was described and corroborated as paralleling the Js boat off the Js right side, occasionally pulling ahead of them on a parallel course. The other PWC was reported by both Js’ as operating in the Js wake, being visible to both husband and wife an estimated 1000 feet astern of them.

4. Both the senior and junior Gys repeatedly state that they saw MD’s craft on the opposite (left) side of the Js boat, with the Gys concerned about a possible collision. The Js state that they did not see the MD craft at all. Additionally MD has no remembrance of the collision, thereby indicating he had no warning of the Js’ approach. MD Mitchell does testify, however, that he had seen the Js’ craft earlier in the day.

5. Reconstruction of the accident would place MD most probably sitting in the right rear of his boat, facing forward with his left hand on the steering tiller of his outboard. His back would be facing toward the path of the oncoming/overtaking vessel. In this way he would neither be able to see nor to hear its approach. MD is responsible for avoiding craft approaching from his right side to a point 22.5 degrees aft of a perpendicular drawn from the middle of the right side of his boat. He is also responsible for maintaining a lookout which sweeps in an total arc of 225 degrees from 22.5 degrees aft of his port beam to the same angle on his starboard beam.

6. The Js contend that they did not see the MD boat or MD because he and the boat blended in with the lake water. Note here that the Gys repeatedly see MD, even though in comparison to the Js they are:

A. Farther away from MD on the opposite side of the Js’ boat;

B. Lower in the water with little comparable visual elevation;

C. Varying in speed and subject to spray as well as the bucking (in two foot chop) motion of their PWC.

7. MD may have been wearing camouflaged pants and dark boots, but he should have been seated with these items largely out of view of any observers. Conversely, he is over six feet tall and was not wearing a shirt. His bare back, which should be readily differentiated from the lake, was facing the Js’. MD’s 15 HP outboard was white with the power head projecting approximately 2 feet above the boat’s transom. There was also a red gas can in the boat. If both the Js testify they could see a PWC being operated 1000 feet astern of them, there is no reason for their not seeing the visual target presented by MD and his equipment as indicated above. This point is especially telling as the two craft were on a constant collision course as attested by the Gys. In other words, the angle of MD’s boat off the bow of the sports cruiser would have remained constant as the distance between the vessels diminished. The size of the visual target presented by MD therefore would have steadily increased as the boats drew closer.

 8. In order to strike the MD craft at 50 degrees, the approaching power boat would overtake the jon boat with the jon boat at a constant angle off the port bow of the power boat. From the operator’s position on the starboard side a number of factors could possibly operate to partially obscure the MD craft from the view of Mr. Js in the starboard operator’s seat. This could be the relative width of the forward deck of the Black Thunder, bow railings/fittings – especially if they reflected sunlight back toward the operator’s position, fenders stowed on the forward (bow) rail and the pitching of the bow itself. These visual interruptions would be of a transient nature. Sun and glare should not present a problem as the accident occurred in early afternoon with the sun at near zenith. And, since this is an overtaking situation the comparative time for the approaching boat to actually contact the craft in front of it is more protracted than in a direct crossing or head on meeting situation. In other words, the operator should easily have been able to see the jon boat, especially as Mr. Js states that his boat rides in a level, not bow up attitude. Moreover, Mrs. Js states she was seated on the far left side of the cockpit maintaining a constant lookout. If this is true there should be no way for her to miss observing MDr for an appreciable time prior to the collision, particularly when compared to the Gys’ testimony of watching the collision situation develop over a period of time.

III. Conclusions:

1. As substantiated by investigation and analysis of physical evidence available on both craft involved in this accident, Mr. Js overtook and overran the MD boat at a high rate of speed. Again, as indicated by the evidence, per rule 13 of both the Inland and International rules of the road, Mr. Js was clearly, solely and absolutely responsible for this accident. MD’s boat was unquestionably the privileged or stand on vessel, which it was Mr. Js responsibility to avoid and/or to safely pass. More importantly, although both Mr. And Mrs. Js have testified they were maintaining a proper lookout, this is manifestly proven to be untrue as MD’s boat was ahead of them, closing at a constant rate/angle and they would therefore have been afforded a relatively extended period of time to observe his craft as they approached it from astern. The Js’ argument regarding the reduced visible signature of the MD boat is irrelevant both from the standpoint of the statutory need for the Js to provide a proper, constant lookout for all craft of any size or nature, and the fact that the MD boat with its white motor, red gas can and upright figure of the tall, bare backed operator present a significant visual target for anyone properly attending to lookout duties.