The operation of a vessel on the water might be seen as similar to the operation of a vehicle on a roadway. In both, you have a helm, controls, and instrumentation. However, with the vehicle, one is often confined in place by a seatbelt with arguably fewer elements to draw attention from the road. At least that’s the way it is for those who aren’t negotiating million-dollar business deals on a cell phone as they hurtle down the highway at 90 feet per second.
But in contrast to cars, boats offer more liberty to the operator. Boats could place controls at the forward end of a main salon or aft end of a crowded cockpit, where more things compete for the focus of the helmsman. The atmosphere could be more sociable than a morning commute, as friends prepare snacks on a galley counter two feet away. But both on sea and on land, cell phones present a formidable rival for the operator’s attention.
Maybe the pervasive use of cell phones today has inured us to the intrusion they present. The devices have become indispensable for many, whether it’s texting a marina for the availability of slips, turning to the VHF less often, or using electronic chart apps that run on processors more powerful than the fire-control computers of World War II battleships.
The role of handheld devices has come a long way since the days of flip phones with post-it sized screens. Some even ask why it is that the smartphone should be seen any differently than the more tolerated and venerable VHF.
On the water, the distraction posed by cell phones is not new to maritime law. In 2013, there was a tragic boating accident involving a speedboat and a ferry operated by the Golden Gate Bridge, Highway & Transportation District. The operator of the speedboat was killed and the owner seriously injured. At trial, plaintiffs’ attorneys argued that the captain of the ferry captain did not see the speedboat due to being distracted by a cell phone call.
There was another case back in July 2010 in which cell phone usage was a factor. The tug Caribbean Sea was pushing a 250-foot barge when it ran over a small tour vessel on the Delaware River. According to the National Transportation Safety Board, the decision to use the lower wheelhouse instead of the elevated one, together with the distraction created by a cell phone were cited as probable causes of the accident. Cell phones aside, the NTSB also pointed to the risk created by anchoring in a busy navigation channel by the tour vessel, which was a DUKW (an acronym used for the World War II amphibious vessels converted to civilian tour vessels by some companies).
In the aftermath of the West Coast accident, Golden Gate Bridge, Highway & Transportation District filed a petition to limit liability. Limiting liability is something that frequently arises in maritime accidents. If successful, the vessel owner could limit liability to the post-casualty value of their vessel.
But Golden Gate’s attempt to limit liability was denied by the court. To succeed, the vessel operator would have had to show that the elements leading to the accident were not within their control. One might argue that an employee using a cell phone is not within the control of the vessel owner, but instead, a spontaneous and unpredictable event.
But that wasn’t how the court saw it. Maybe a vessel owner can’t control a phone call. But a vessel operator does control the operations of its fleet, in everything from crew training to preventive maintenance for diesel engines. The court pointed to the fact that Golden Gate did not have a standard policy in effect for cell phone use by captains.
This is not unusual when a ship owner tries to invoke limitation of liability. Although vessel interests could argue that they had no control over a singular, specific act that caused an accident, plaintiffs could point to a course of conduct that shows they knew, or maybe should have known, about a safety issue. And that goes to the element of control. It shows that courts view the use of cell phones on the water just as seriously as on land.