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ONE MILLION DEFECTIVE PERSONAL WATERCRAFT IN USE?
Results from the 1998 National Transportation Safety Board (NTSB) Personal Watercraft Safety Study represents PERSONAL WATERCRAFT FATALITIES ARE INCREASING AT AN ALARMING RATE!

Although the number of recreational boating fatalities has been declining, the number of Personal Watercraft (PWC) related fatalities has been increasing. Coast Guard information indicates that 8,005 recreational boating accidents were reported for 1996, of which 2,868 involved PWC. PWC in use in 1996 represented 7.5 percent of the state registered recreational boats, yet PWC accounted for 36 percent of the 1996 reported recreational boating accidents, 36 percent of the total number of vessels involved, and more than 41 percent of the persons injured in those boating accidents.

As a result of their published 1998 safety study, the National Transportation Safety Board (page 57) made the following safety recommendations:

"To the Manufacturers of Personal Watercraft (Kawasaki, Yamaha, Polaris, Bombardier, and Arctic Cat , Inc./Tiger Shark) --

Evaluate personal watercraft designs and make changes to improve operator control and to help prevent personal injuries. Consider items such as off-throttle steering, braking, and padded handlebars, and operator equipment such as personal flotation devices and helmets.

Develop, with the U.S. Coast Guard, comprehensive standards that are specific to the safety risks of personal watercraft."

The first commercially successful PWC, the Jet Ski, was introduced by Kawasaki in 1974 and had an output of 32 horsepower, maximum speed under 30 miles per hour and short stopping distance. The 1998 model year offered 16 models with engines exceeding 100 horsepower some offering triple cylinder 1100 cc's, capable of speeds in excess of 60 mph in their stock configuration (after-market modifications can further increase the high end speed capability) with high speed, low drag, long stopping distance hull designs. Each year the manufacturers compete to provide the fastest and most responsive craft to the public.

The technology for increased speed and improved hull designs has been consistently developed on the racecourse via manufacturer backed high-budget race teams all seeking the edge over their competitors. These high performance race crafts, safe in the hands of highly experienced and educated operators, are currently offered by the manufactures as a safe family water toy.

The NTSB report recommended to manufacturers (as previously noted) design changes in off-throttle steering first followed by braking.

Off-throttle Steering
"A PWC uses a moveable nozzle connected to a jet pump, rather than a propeller, to power the vessel. This distinction affects the operating and handling characteristics of the vessel. The most notable distinction is "off-throttle steering," a trade term for the situation that exists when an operator releases the throttle and then attempts to execute a turn. The term is an oxymoron because there is little or no steering capability when the throttle is off. Turning the PWC handlebar changes the angle of water exiting the jet pump, but without power to the jet pump, there is little or no directional thrust. As stated in the owner's safety manual of one PWC manufacturer, "Remember, releasing the throttle completely eliminates the ability to steer the watercraft." This operating characteristic is likely to be counterintuitive to novice operators, particularly in situations of potential collision. When a new rider realizes there is danger of hitting another vessel or object, the operator's typical response based on experience with other motor vehicles is to first let off the throttle and then attempts to steer away from the hazard. But closing off the throttle leaves the vessel coasting in the original direction based on the effects of momentum, and without throttle there is very limited steering control. Personal watercraft have no braking mechanism; they coast to a stop and, while coasting, there is no turning ability. Executing a controlled-speed turn is the correct response to avoid a collision, but to a new operator this may feel like speeding toward a hazard."

Braking
The PWC industry position that boats do not have brakes is incorrect. Conventional boats utilize reverse propulsion as a means to brake. PWC has no such means to slow down. When you have high top end speed with minimal hull cohesion, slowing down requires a considerable distance. Coupled with the off-throttle steering offers the average operator very little control.

No one knows the magnitude nor the total of the million dollar plus confidential civil settlements offered by the manufacturers within the growing product defect liability arena. Public record only discloses the cases the manufacturer chooses to litigate with anticipated defendant victory.

While the highly competitive PWC manufacturers have spent millions in advertising and improving speed appalling is the lack of safety considerations. Faster crafts require greater safety concerns. While independent after-market entrepreneurs have developed devices to improve off-throttle steering and braking, this technology has not been recognized by the manufacturers. Contrary to the PWC manufacturer intended public usage; this product is defective and unsafe to all except the highly trained and educated operator.

About the Author
Captain Bradley Cuthbertson's lifelong commitment to the boating industry is highlighted by recognition as a pioneer responsible for the early development of jet ski and personal watercraft safety and racing programs. His growing status as a leading recreational boating safety expert has been advantageous for many attorneys seeking assistance in a variety of maritime issues ranging from scuba to pleasure crafts exceeding sixty feet in length. Jet skis rapid rise in popularity and use coupled with Mr. Cuthbertson's unmatched expertise has resulted in a rapid increase of attorneys seeking his assistance with their jet ski and personal watercraft matters.

Captain Cuthbertson can be contacted through Gary Robinson, Inc. at (877) 746-5310.







Personal Watercraft Civil Litigation on the Rise
by Captain Brad Cuthbertson

Personal Watercraft (PWC)-related civil litigation has experienced a dramatic increase in recent years, fueled by a large installed population (1.2 million), sales of over 100,000 units per year, higher top speeds (up to 65 MPH stock) and several design defects including the most prominent, Off-Throttle Steering Loss (OTSL). OTSL occurs when an operator, faced with a potential collision hazard, releases the throttle to slow the craft and then steers away from the hazard. Because of their jet-pump design, PWC do not provide steering control under these circumstances. According to the National Transportation Safety Board (NTSB) 24% of PWC accidents have steering problems or loss of control as a contributing factor.

PWC manufacturers claim that this loss of steering control is inherent in any jet-pump design and that operators are to blame for improper use of PWC. However, at least 80% of PWC operators have had prior boating experience, implying that there is something inherently different about PWC as compared to traditional recreational powerboats. That something is the loss of steering control under circumstances when it is needed the most. This counterintuitive steering response also occurs when the engine is off.
Off-engine scenarios are easy to envision and include, among others, inadvertent pulling of the lanyard, engine failure, and intentional use of the stop button.

Disproportionate and rising PWC accident statistics (as compared to traditional recreational powerboats) prompted the NTSB to conduct a nationwide PWC Safety Study in 1998. On the average each one percent of PWC registrations generates five percent of recreational boating accidents. A United States Coast Guard (USCG) sponsored survey found that the exposure rate for non-fatal PWC accidents is 6.5 times higher than for traditional recreational powerboats. A few years earlier, a survey of hospital
admissions conducted by the American Medical Association and the Centers for Disease Control found that PWC operators were 8.5 times more likely to be injured than persons in powerboats. Another recent study of hospital admissions found that in the Orlando, Florida area only 8% of all non-fatal PWC accidents requiring hospital treatment were reported to state authorities. And a recent analysis of off-engine boating accident reports shows these accidents are increasing at a rate of 59% per year and in the year 2000 a total of 1,252 off-engine accidents occurred.

Considering the obviousness of this design defect and the mounting evidence coupled with increasing injuries, many fatal, it is remarkable outside of the NTSB Safety Recommendations that historically so little has been accomplished by government to address this important safety issue. Recently however, the USCG has made progress in identifying the need for a PWC Off-Throttle Steering (OTS) performance standard, in identifying and testing available OTS technologies, and in creating a PWC collision avoidance standard.

However, this progress has not been made easily. One of the more blatant attempts to downplay OTSL, discredit available OTS technologies and thwart further USCG action was what has come to be known as The Breen Report. As a result of a National Association of State Boating Law Administrators resolution, the USCG issued a grant to the Society of Automotive Engineers (SAE) to test the effectiveness of available devices in addressing OTSL. SAE contracted Robert Taylor to manage the project and Kevin Breen to perform the testing and analysis. At that time the USCG did not want any involvement of the SAE PWC Standards Subcommittee with the grant because of heavy industry influence. However Breen, Taylor and SAE failed to disclose to the USCG that Breen and Taylor had previously served as expert witnesses in OTSL-related cases, that they had strong opinions about OTSL in general, that Breen was a member of the SAE PWC Standards Subcommittee and that Breen was working concurrently as a defense expert witness on another OTSL case while performing testing for the USCG.

After learning of this, the USCG decided to restrict Breen to report only data and that no comments or conclusions were to be included. Upon receiving the report, the USCG was flabbergasted to find that
two-thirds of the report contained uninvited and unwelcome comments and conclusions. Furthermore, the comments and conclusions were unsubstantiated by the data and actually contradicted it in many areas. Court papers also show that Breen intended to use an unapproved draft version of the report as evidence. Consequently, the USCG decided not to release the Breen Report. Several attempts to release the Breen Report under Freedom of Information Act have failed.

As a result of the Breen Report and pressure from the NTSB, the USCG formed a PWC Advisory Panel under the American Boat & Yacht Council. This panel concluded that a PWC OTS performance standard was needed. All PWC manufacturers and the Personal Watercraft Industry Association (PWIA) voted in favor of the need for an OTS performance standard. During discussions it was determined that a braking (controlled deceleration) devices could also be used to prevent a potential collision. Therefore the term OTSL was replaced by the more general term Collision Avoidance.

The USCG then issued a grant to Underwriter's Laboratories (UL) in May of 2000 to test available collision avoidance technologies and develop a proposed standard for PWC Collision Avoidance. The final UL test report and proposed standard is to be released by the end of June of 2001 to the SAE
PWC committee to modify as it sees fit. Even though the USCG knew that the SAE PWC Standards Subcommittee was heavily influenced by industry and had ties to the Breen Report, it still selected the SAE PWC Standards Subcommittee to make the final decision on the Collision Avoidance Standard. A preliminary draft of the Collision Avoidance performance standard was issued by UL and in a recent SAE PWC meeting, populated by several industry lawyers, the draft UL standard was discussed at length.

It is the USCG's intention to have the SAE PWC committee approve a final standard to be used as a voluntary minimum industry standard. However the USCG reserves the right to proceed with rule making if the standard passed is considered insufficient to have a positive impact on PWC collisions.

What has the industry done to address OTSL in the nearly three years since the NTSB issued its safety recommendations to "make changes to improve operator control. Consider items such as off-throttle steering?" Surprisingly, the first "manufacturer" to publicly demonstrate an OTS device did so well after abandoning the marketplace. ArctiCat, former manufacturer of the TigerShark line of PWC introduced a throttle reapplication device, apparently with the intention of licensing it to its former competitors. For the 2001 model year Kawasaki introduced its SmartSteering system, which is also a throttle reapplication technology marketed as a training device. This design uses sensors to detect the occurrence of OTSL: sudden release of throttle from high speed and hard over, starboard or port. Once these two events are detected, the electronic engine control signals the motor to increase speed to a certain RPM for a specific limited time. Even though Kawasaki is promoting this as a training device, it is clearly an OTS device. It was provided to UL for Collision Avoidance testing under the USCG grant and it is therefore a collision avoidance device. Additionally, one PWC magazine reported, "The system will help riders and may reduce the chances of collisions during throttle-off emergencies."

SmartSteering and other throttle reapplication technologies however, do not provide any steering control during off-engine situations. ArctiCat is suing Kawasaki over throttle reapplication technology while the remaining manufacturers are apparently waiting for the final standard before proceeding.

With over 1.2 million PWC in operation on ever more crowded waterways at potentially high speeds with no brakes and the threat of steering loss, the potential for accidents, injuries and fatalities is all too real. With more and more evidence points towards off-throttle and off-engine steering loss as contributing to accidents, it has become more and more difficult for the industry to defend itself.

Personally I have been requested to investigate causal and responsibility of boating accidents for ten years. Within that time, I found a growing disproportionate to be PWC collision fatalities attributed to product defect and specifically the inability to control collision avoidance. There is an urgent and immediate need for the PWC manufactures to offer retrofits to improve off-throttle steering and braking to the existing PWC's and utilize existing technology to improve all new craft offered to the public.


This may be the only solution to address the growing deaths directly attributed to product defect and may not be too cost prohibited when considering the untold / unknown hundreds of millions of (confidential) dollars being paid to the growing numbers of grieving civil plaintiffs in exchange for keeping their law suits from becoming public information.


About The Author:
Captain Cuthbertson's lifelong commitment to the boating industry is highlighted by recognition as a pioneer responsible for the early development of PWC safety and racing programs.

Captain Cuthbertson can be contacted toll-free at (877) 746-5310, e-mail; grconsultant@msn.com







Submerged Cultural Resource Laws and Policies
David Neblett

When I began to study submerged cultural resource legislation and management I became enlightened by the truths that laws and enforcement are only a small part of the solution to save our cultural heritage from people that are only interested with the financial gain from antiquities. Modern Americans unlike many other cultures around the world, "Including native American Indians" do not seem to place great importance on preserving artifacts relating to their history. This may be due to the fact that "Americans" have only occupied north America for a short time and do not feel ancestral ties to the past as many people with ancient culture and history. This lack of respect for artifacts of great scientific and cultural potential but little monetary value is a direct result of our greedy capitalistic society.

There is currently much debate as to the best policies to help the public see the importance of Marine Archeological evidence, end the black market trade in Antiquities, and find some criteria for describing a wreck or artifact as being "historical" or worthy of protection. Much of this debate is derived from the fact that there seems to be little if any collective agreement even from professional Marine Archeologist as to what types of actions or legislation best suits this extensive issue. Not only do the treasure hunters, and art dealers oppose much of the current laws but many recreational divers and common laymen do not see the importance in the precise nature of Archeological research. This ignorance can only be changed trough the proper education of students and the public as a whole.

There have been laws for the protection of archeological resources in the U.S. for over a century. In the Early 1900's many collectors and certain historians realized the great profit and historical significance in many artifacts that were being found all over the country and especially in the west. The federal government soon realized that something must be done or much of Native American and early colonial history would be lost as mantle pieces in rich homes. The Antiquities Act of 1906, provided for the formation of national monuments and the issuance of permits to insure regulation as dealing with archeological excavations. This act focused on three areas of importance: criminal punishments for the destruction of artifacts; to allow for the formation of historic and scientific national monuments; and to allow for the establishment of permit procedures for the examination and excavation of archeological sites. This act requires the secretaries of three federal departments to regulate this act. This was the first legislation dealing with cultural resources, and while it was not a very effective deterrent, it began the long legal process of saving our past. "The overall enforcement record for the Antiquities Act from 1906 to 1979 is 18 convictions, $4,000 in fines, and two 90-day jail sentences." (Jones, p25) Since this time many protection laws have developed within broader context of Archeological Resources.

These laws have become increasingly stringent of criminals and have focused on the sites and artifacts as nonrenewable cultural resources. The need for new laws became increasingly more apparent and the Society for American Archeology drafted prototype legislation and fought to get congressional support. The Archeological Resource protection act (ARPA) was signed into law by president Jimmy Carter on October 31, 1979, and has been amended many times by different agencies since then. The ARPA is found in the land use and conservation legislation, and is a very versatile civil law tool. Their is a strong criminal statute, and the "ARPA can also be a catalyst for education and the interaction of interest groups to preserve and protect archeological resources."(McAllister, p31). These laws have saved much historical evidence but are just the tip of the iceberg for a much larger conservation issue.

These laws did change awareness of the importance of cultural resources, but many of these laws do not effect Archeological resources found underwater or on private lands. The location and previous ownership is very important to obtain ownership and protection for historic sites. Many states have a different zones of management control depending on the bodies of water by which they reside, and over the years there has been increased legislation in federally owned or controlled seabeds and resources therein.

Before legislation was devised for SCRs all wrecks were dealt with through Admiralty law. This allowed salvage companies to sue for ownership of wrecks, so they could excavate and sell any artifacts they might plunder. Some legislation has been designed to help protect underwater resources, and legislation has been enacted to transfer from Admiralty law to state enforced laws. The federal Abandon shipwreck act of 1987 gives states the title to historic shipwrecks within their jurisdiction and can issue permits to regulate salvage. This act also provides for historical wreck definition; a wreck that is fifty or more years old, and the final guidelines suggest many strategies to encourage public use and understanding of SCRs.

Through the Department of the Interior the National Parks Service has come up with many guidelines and suggestions that will help protect SCRs and increase public awareness of these resources. A wealth of good information can be gleamed from the Abandoned Shipwreck Act Guidelines, but this document only suggest these courses of action to states to put into law. Much of the information dealing with the public and education about SCRs is over looked by states and many of these guidelines are never followed.

Their are many very good guidelines in the Abandoned Shipwreck Act some of the Acts findings include; G. Providing public access to Shipwrecks: Access to publicly owned shipwrecks by the public is beneficial for tourism, public enjoyment and appreciation, and preservation, as well as for recreation.

  1. 1 Guarantee recreational exploration of publicly owned shipwreck sites; At a minimum, any person should be able to freely and without permit dive on, inspect, study, explore, measure, record, fish at, or otherwise use and enjoy.
  2. 2 Establish lists of shipwrecks having recreational value; These list should note shipwrecks location depth and historical significance.
  3. 3 Facilitate public access to shipwrecks; Recreational values should be facilitated though the placement of marker buoys and anchor moorings and through the distribution of information at dive shops and marinas. H. Interpreting Shipwreck sites: Interpretation of publicly owned shipwrecks help increase the publics knowledge and understanding of our nations maritime history and application for shipwrecks and their preservation. 1 Present information on the vessel's history and the shipwreck's various values and uses; Interpretive efforts should strive to present to the public information about a vessel's construction, type, characteristics, age, use history, significance in history. 2 Disseminate information on shipwrecks projects through publications, lectures, exhibits, and professional papers;
    The results of shipwreck projects should be presented in professional reports and journals as well as in non-technical, popular publications. Lectures, videos, slide shows, and exhibits on shipwreck projects, maritime history, underwater archaeology, and opportunities for sport divers should be made available. 3 Build models of vessels: Models of intact shipwrecks should be made and exhibited to provide detailed, small scale orientation and interpretation for divers and non-divers.
  4. 4 Include interpretive material in underwater parks, and preserves: The creation of underwater trails at shipwreck sites. Sites and noteworthy features should be marked with permanent signs. Signs also should be placed on mooring buoys along trails. In addition, a site map and pamphlet should be prepared for individual shipwreck sites.
  5. 5 Encourage public and private interest groups to dissimulate information on shipwreck activities; Public and private museums and visitor centers should be encouraged to provide lectures, slide shows, videos, and exhibits.
  6. 6 Require permittees, licensees, and contractors to disseminate information about recovery activities at historic shipwrecks: A) Make presentations on the results of the recovery activity and archeological findings at professional meetings and in public forums. B) Prepare scientific and non-technical, popular publications; and C) To the extent possible, make artifacts and other materials recovered from the shipwreck available for future study, public interpretation and exhibition.

I Establish volunteer programs: Establishing organized volunteer programs that include sport divers, and other interested parties in shipwreck management activities.

  1. Use volunteers in shipwreck projects; Dive clubs, dive shops, dive boat operators, and individual sport divers frequently are willing to volunteer their diving skills or donate the use of their vessels or equipment.
  2. Maintain lists of volunteers; Associations, and organizations that have indicated an interest in volunteering their services and equipment in shipwreck survey, mapping, and research projects should be assembled and maintained.
  3. Distribute information on shipwreck projects to interested parties; Information on proposed shipwreck projects routinely should be distributed to sport divers, dive clubs and dive shops, and other businesses.
  4. Ensure that volunteers are properly trained and supervised; Divers should be encouraged to complete standardized diver specialty certification courses.
  5. Cooperate with the private sector in designing and teaching archeological methods specialty courses for sport divers; Introductory courses should provide background in archival research, survey methods, site mapping, illustration, photography, diagnostic measurement skills. In addition, they should teach divers nondestructive preservation oriented behavior and describe State and Federal law.
  6. Recognize private sector contributions to shipwreck discovery, research and preservation; Persons who find and report the discovery of previously unknown shipwrecks, who volunteer their skills or who donate their vessels should be recognized for their contributions to shipwreck discovery; A) Naming the shipwreck site after the person that finds it; B) Issuing certificates or plaques; C) Naming discoverers, volunteers and donors in museum exhibits, newspaper and magazine coverage, and publication.

This is a great plan to help involve the public and build more interest by the public, but how many of above suggestions have been implemented? I am sorry to say not enough. I have been a diver in Florida all my life and I have never seen a; map, pamphlet, plaque, volunteer group, or project information on any historic shipwrecks in a states which contains hundreds.

Treasure hunting lawyers have found many loopholes in the past with Admiralty law, and still seem to be able to undermine present regulations. Much of the laws concerning SCRs were never designed to encompass management of the state owned seabed by Federal agencies, or to establish laws witch protect all sorts of Artifacts and their trade worldwide. "Today treasure hunts are promoted on Wall Street and the Vancouver Stock Exchange. There investors include some of the wealthiest men in the world. What were are seeing today is an assault on antiquities by an industry, not by a bunch of small time adventurers."(Throckmorton. p8).

The huge amounts of money that is poured into the treasure hunting outfits is due directly to the profit that can be made for the sales of the antiquities excavated. Many treasurer hunters think that Marine sites, especially wrecks can bring huge profits and are easy to loot under faulty laws. Much emphasis in the media and public dealing with historic wrecks focus on treasure hunters like Mel Fisher and their fortune in gold and jewels, not on the hard working Archeologist that finds tremendous historical significance in that same site.

Salvagers have been around as long as there has been precious cargo that has found its way to the sea floor, and the blackmarket has been there just as long to buy and sell these artifacts . The large salvage companies of today show little respect for cultural resources and only work to make a profit and to distribute Archeological evidence to the highest bidder. The tremendous work and space required to conserve, store and exhibit historic artifacts for the public and professionals to view presents just as many obstacles as overcoming the publics lust for gold.

This salvage boom began in Florida in the early sixties with the advent of SCUBA, and the discovery of many shallow wrecks including the discovery of the 1715 plate fleet off of Vero beach. Many weekend hobbyist and large salvage firms came to Florida for this "Gold rush" including Mel Fisher. Soon the hunters moved to Key West and started searching for the Atocha, witch Mel Fisher eventually found and looted. He was a instant hero, and the American public gave these for- profit adventurers great acclaim. Fisher and his group destroyed the historical value of the wreck because of a rush to get to the gold and jewels, and the lack of any professionalism or Archeological excavation methods. Not only did Fisher destroy most of the historical parts of the wreck "Hull" but he also sold a great deal of these resources with no concern to there conservation or to their historical significance to a trained archeologist.

George Bass explains the importance of conservation and continuing study of artifacts decades after the excavation is complete. Bass tells that revolutionary discoveries of the Byzantine wreck excavated in 1961-64 were made during the eighties because of new technology and professionals spending great amounts of time conducting detailed studies. "Twenty nine years ago we did not have a paleobotanist surveying mud from each of the amphoras to determine what it had contained. Twenty nine years ago there were no neutron activated studies of pottery to tell us if there clays came from one or more sources. One good thing we did twenty nine years ago was to leave about 700 of the 900 amphoras on the seabed."(Bass, 11).

Because of the nature of the treasure hunters profit making attitude very little historical evidence will ever be gleamed through intensive study because the resources are scattered throughout the private sector. Florida policy toward underwater antiquities has been a 25% share of the loot to achieve a permit for excavation. This percent of the grubbing can be paid in the form of artifacts, and has usually been skewed to give the state the worst or least valuable artifacts. Peter Throckmorton discusses the treasure hunting problem in Florida and addresses the policy, "The state's 25 percent share from treasure hunting of the past 20 years is a collection worth only about five million today....

The collection has cost more than its value to maintain, especially if one includes the cost of continuing legal cases that have resulted from the states policy."(Throckmorton, p8) Many professionals feel that the states including Florida should set a museum system to educate the public, promote tourism, provide access for study, and to pay for the cost of conservation. The shift of focus should not be only saving the physical remains of past culture, but also through the education of the public. It is clear that more laws are need to protect historic resources. But it is not the laws alone that provide for the Conservation and study of our heritage.

More must be done in the professional field to find consensus over resource management policy. This consensus must consider a number of important factors: Cooperation between Archeologist, public, and Salvage; Black market trade in historic artifacts; Conservation and display for public and scientific study; ownership of artifacts; and preservation and definition of historic sites.

This may seem like a long list and an impossible dream, but every time another wreck is looted or lost another page in history vanishes forever. Cooperation between all parties evolved with historical resources is very important because at this point all parties seemed to be at great odds, and this does nothing for the plight of the resources that should be protected. More research and study should be done to help set standards to decide the balance between salvage and excavation, also regulations should be provided to assign professional supervision to even the most despicable treasure hunters.

I feel that a system of checks and balances would benefit all parties, and I'm sure that combining forces as difficult as it may appear will drastically affect the amount and quality of artifacts recovered. Toni Carrell address the balance that must be achieved between granting permits for salvage and excavation, and the looting and natural destruction of a wreck. Carrell addresses a wreck with a cargo of various goods including scotch and champagne that was publicly announced and a prime target for looters; "Soon after the wreck became widely known the cases of liquor disappeared....Yet the question remains unanswered : how much of the cargo and equipment would have remained if salvage had not been permitted?"(Carrell p4).

Here it seems that science seems to gain from salvage because little evidence and poor records are better than leaving no historical evidence at all. There would be no need to protect Archeological resources if there was no monetary value placed on artifacts of historic importance. The only reason there is a treasure hunting and looting going on is because of profit or more realistically expected profit. "As long as there is a market, there are unscrupulous individuals who will continue to destroy irreplaceable resources to feed the market.

The way to stop the destruction of resources is to stop the consumption of theses endangered resources." (Cockrell p 13) If greater importance was placed on the need to do scientific investigation and historical and cultural studies, more people dealing with antiquities would realize the great injustice they are doing to mankind by buying goods off the black market or keeping them from professional research. Many collectors and even a number of museums are guilty of unscrupulous actions, and deny study of their collections.

Laws must be enacted and better steps must be taken to try to identify artifacts so that collectors and museums could only obtain antiquities that are identified and numbered. This would provide a catalog of artifacts, and provide a method of the location of a particular artifact so that it might be later studied. Most professionals would not object if a particular artifact went to a museum or even private hands if the Archeologist was sure the artifact was properly conserved and he had as much time to study the object as needed and could retrieve the object on request for further study.

The need to keep Archeologist in charge of artifacts not only has to due with extensive study but also with the physical and exhibitor nature of its conservation. Only a professional can judge the stability of an artifact in a terrestrial environment, and can judge its true historic nature. Here again education should be the main concern and this education should include the public though exhibition. The public attitudes toward Archeology and resource protection is a very important factor, and professional archeologist along with treasure hunters should realize that all people have a right to view and understand their cultural heritage.

At present most projects divert funds and resources to store artifacts, but few see the importance and cost effective nature of loot displayed in some type of museum setting. Many states and even private enterprise would profit or at least cut the incredible cost of excavation and conservation by the adoption of a museum policy. Florida 25% collection of treasure from permits on state owned sites cost more than its value to conserve, store and maintain. "If Florida had used state money, and invested 10 million dollars in two great maritime museums back in the 1960's the state would be nearly half a billion dollars richer each year...

It could even be argued that individuals and corporations who wanted to do legitimate work in searching for and excavating shipwrecks that collaborated with the state, would have profited." (Throckmorton, p) Not only does the public gain from the exhibition and education, but also these museums provide profit to help finance projects and excavations that without funding would slip away. This policy would attract more attention to Marine Archeology, and increase funding would lead to more archeological projects and provide more reason to be a marine Archeologist not a treasure hunter.

There must be a shift of the profit emphasis of artifacts to deal only within the constrained boundaries of museums. "Several companies are now investigating financing archeological projects that will result in museums, and building resorts around them so they acquire long-term profit from the visitors attracted by the museum."(Thorkmorton, p7) For the above polices to become reality one must concentrate on the ownership of the artifacts. This is a crucial issue because it deals with the trade in artifacts and use of those artifacts to exhibit to the public. With a emphasis on profit from museum visitation instead of from sales, more artifacts especially those of great historical or public interest will end up on exhibit or under study. This would give states and museum curators more reason to try to get choice items out of private collections and into their new exhibits.

Many states such as Florida could ask for more than a 25% share of the loot if agreement could be made to the allocation of future profits. This could induce more joint ventures between the state and salvers with a more professional approach, and really fulfill the need for education to sell important artifacts. A system can be devised as stated earlier that would allow a professional the right to conserve, study, record and even sell pieces that are no longer considered of historic value, and that must go into storage. The Florida state museum has in its possession about 20 thousand silver coins, some of these could possibly be sold and funds put toward more current projects. This system would include a catalog and right of an Archeologist to request further study.

The location of an under water site is very important in protection and management because it not only dictates ownership of the wreck, but the physical constants of excavation or recreational diving and the relative depth and water conditions, "Viability, temperature, surge, currents, and toxins". The distance from the site to large populations of divers or interested parties along with access from land or sea are important as well. Most can not afford deep water salvage, and with the minimal policing force that tries to administer these laws, little notice or protection is given to very deep wrecks even if they are known.
The Titanic an the Central America are located in deep international waters and there seems to be very little if any regulation of the international seas. This situation can arise adversely too with the protecting of a shipwreck on dry land. The legality under federal and international laws also needs to be considered as to wreck ownership, permits, and regulations enforced by differing states or other agencies. This legality also deals with regulations and police control to insure the professionalism of the people and the quality of the work being done on the project.

The protection of the site must go on after work is done there to be assured that people will not plunder sites that have produced artifacts, and that the site will probably have to be re buried and records maintained to facilitate further study. More important than any one of the above criteria is educating the public and especially our youth. Many of the Abandoned Shipwreck Acts Guidelines need to be followed through but one major area of reform that was not mentioned in the guidelines was a change in states educational systems.

The state of California requires all third graders to complete a project on one of the Spanish Missions. These youngsters must make a model of the mission and complete a research paper. I feel that third graders in Florida would get great information have a good time and learn a great deal about SCRs and their importance to maritime history in the United States if they ad to do research on shipwrecks.

More time must be spent in classrooms to show importance of Archeologist and the part they play in putting together our heritage. Models, and interpretive pictures "Like the ones created for little salt springs", and other teaching aids should be made available to schools. Maritime history should be taught and protection of SCRs should be taught along with environmental issues. Even the museums promote pirates and treasure chests to our youth and not the importance of maritime history. These institutions need to realize the message they send to the public and create exhibitions that show the true nature of marine archeology.

It is clear that much more time and effort must be invested into thought and policy concerning submerged cultural resources protection. There has been a number of recent laws past to help save what is left of underwater cultural resources, but it is obvious that these laws do not fully promote scientific study and a public understanding of our cultural heritage. These laws do not fully or in some cases even partially protect the sites, and with current legislation the public and profession sector can only hope to fight over the most worthless 25% of the loot.

After witnessing the false sense of security that law provides you begin to look deeper into the issue about the blackmarket trade, and a general public apathy about archeology . "More stringent laws alone will not resolve this problem. Rather, an effective solution requires a major change in public opinion to increase and awareness and understanding of our archeological heritage."(Peccadillo, p9)

This lack of public awareness and bad media publicity is partly due to the fact there are such a great variance in opinions between treasure hunters and scientist. All the scientist realize the problems with current systems and many strive to change the system dealing with their particular expertise. This is great but thousands of different policies and changes made in a haphazard attempt to perfect this field of study still leave great disagreement between "experts" This inconsistency does not provide responsible direction for professional archeologist and certainly does not for the public who acclaim Mel Fisher as a master treasure hunter.

The archeological community must debate and as one consolidated unit express the need for increased scientific research and to begin to enact a complete change in the antiquities trade and exhibition policy away form antiquities sales to the education and display of the public cultural heritage. As previously explained this change has to be in the motive for Archaeological research to provide preservation of the past accomplished not by saving the physical remains of previous cultures, but though education of the value of learning about these cultures.

I hope to see the day when people remember George Bass as the father of underwater not Mel Fisher treasure looter in the history books.

Bibliography
Anuskiewicz, Richard J. Archaeological Resource Management on the Outer Continental Shelf, 1989 Bass, George F. After the diving is over, 1990 Cockrell, Wilburn A. Why Dr. Bass couldn't Convince Mr. Gumble: The Trouble with Treasure Revisited, again, 1990 Fowler, Jhon M. The Legal Structure for the Protection of Archaeological Resources, 1991 Halsey, John R Michigan's Great Lakes Shipwrecks: Save Salvage or Excavate? 1989 Keel,Bennie C. The Future of Protecting the Past, 1991 Lerner, Shereen Saving sites: Preservation and Education, 1991 McAllister, Martin E. Archaeological Resource Protection, 1992 Peccadillo, David L. Public Attitudes Towards Archaeological Resources and their Management, 1991 Stuart, George E. Conclusion: Working Together to Preserve Our Past, 1989 Throckmorton, Peter The economics of treasure hunting with real life comparisons, 1990 Waddell, Peter Reburial of the Red Bay Wreck as a Form of Preservation and Protection of the Historic Resource, 1994 Warren, Karen J. A Philosophical Perspective on the Ethics and Resolution of Cultural Property Issues, 1989







Discharge of Oil or Hazardous Substances
Notification And Telephone Numbers

Public Law 96-510 and Public Law 92-500 (CERCLA) requires immediate notification of the appropriate agency of the United States Government of a discharge of oil or hazardous substances "Any such person who fails to notify immediately such agency of such discharge shall, upon conviction, be fined not more than $10,000 or imprisoned for not more than one year, or both."

Pursuant to Chapters 376 and 403, Florida Statutes:

  • The pilot or the master of a vessel, or person in charge of any terminal facility must notify the Florida Marine Patrol or the United States Coast Guard within one hour of the pollutant discharge...
  • Any owner or operator of a facility who has knowledge of any release of a hazardous substances from a facility in a quantity equal to or exceeding the reportable quantity in a 24 hour period shall notify the State Warning Point within one working day of the release...
  • The owner or operator having a discharge of petroleum or petroleum products exceeding 25 gallons on a pervious surface must report such discharge to the Department of Environmental Protection or the State Warning Point.
Discharge of Oil and Hazardous Substances Prohibited
Telephone Numbers for Reporting Violations
Federal U.S. Coast Guard National Response Center
(800)424-8802 (24 Hours)
State of Florida State Warning Point
(800)320-0519 (24 Hours)
or
Florida Marine Patrol
(800)342-5367 (24 Hours, In State)
REPORT THE FOLLOWING INFORMATION
  1. Name, address, and telephone number of person reporting
  2. Name, address, and telephone number of person responsible for the discharge or release, if known
  3. Date and time of the discharge or release
  4. Type or name of substance discharged or released
  5. Estimated amount of the discharge or release
  6. Location or address of discharge or release
  7. Source and cause of the discharge or release
  8. Size and characteristics of area affected by the discharge or release
  9. Containment and cleanup actions taken to date
  10. Other persons or agencies contacted






The Clean Vessel Act by Boaters

Frequently Asked Questions

What impact does a recreational boaters have on "Clean Water"?
Boaters, more than any other group, want to protect and preserve our water. However, vessel sewage is more concentrated than domestic sewage, as shown below.

Source Typical BOD Levels Boat Sewage 1700-3500 mg/l
Raw Municipal Sewage 110-400 mg/l
Treated Municipal Sewage 5-100 mg/l

Compounding this problem for vessel holding tanks is the presence of chemical additives which have been used to disinfect and deodorize the waste, including formaldehyde, paraformaldehyde, quaternary ammonium chloride and zinc sulfate. Ideally odor-control chemicals should be biodegradable when diluted and contains no dye or perfumes.

What are the coastal boundaries for "State" waters in Florida?
Coastal limits are 9 nautical miles on the Gulf and 3 miles on the Atlantic Ocean.

What are Marine Sanitation Devices?
A Marine Sanitation Device (MSD) is any equipment for installation on board a vessel, other than a toilet, which is designed to receive, retain, treat or discharge sewage and any process to treat such sewage (Florida Statute 327.53).

MSD TYPE 1: Flow-through device that treats sewage by chemical or thermal means
MSD TYPE 2: Device that treats the sewage by biological means and uses bacteria
MSD TYPE 3: Holds the sewage. Prevents direct overboard discharge or sewage

All MSD's have to be US Coast Guard Approved (label affixed for type 1 & 2, or letter/document on board)

How do you tell if the MSD is U.S. Coast Guard approved?
A label is affixed or letter/document on board for Type 1 or 2 MSD; Type 3 does not require a label.

What are the guidelines for "y-valves"?
Under federal law, if your boat has a "Y" valve allowing direct overboard discharge of untreated waste, it must be closed while operating in all inland and coastal waters. It is suggested you use a non-releasable wire tie, lock, or remove the valve handle to secure the device. When you are more than 3 miles offshore in the ocean, the "Y" valve may be open allowing direct discharge overboard.

A "Y" valve may also be found on boats having both a Type I or II and a holding tank. This gives the boater an option to discharge treated waste overboard or to contain it for pumpout later. In certain waters, discharge of all sewage (whether Type I, II or III) is illegal.

What is a "No Discharge Zone"?
Also known as NDZ, a "No Discharge Zone" is approved by the U.S. Environmental Protection Agency which prohibit boats from discharging treated or untreated sewage into water bodies. In these waters, a "Y" valve has to be closed. Currently, there is only one NDZ in Florida; Destin Harbor. In other states, these waters include rivers, lakes, and reservoirs without interstate navigation and where entry or exit by boat is not possible.

Which crafts are required by law (Florida Statute 327.53) to have a working toilet on board when in state waters?

  • Any vessel 26 feet or longer with an enclosed cabin and berthing facilities
  • Any houseboat, defined as a vessel used primarily as a residence and not moved for 21 out of 30 days in a county of this state
  • Any floating structure with enclosed living space with berthing facilities or work space with public access

What impact does contaminated water have on our waterways?
A single overboard discharge of human waste can be detected in up to a one square mile area of shallow enclosed water. Contaminants known from human waste include hepatitis, streptococci, fecal coliform and other bacteria. Marine sanitation devices may also contain harmful chemicals in the disinfectants and deodorants. The highest levels, of boater generated, fecal coliform bacteria are most evident in "hot spot" areas of high boat traffic and low tidal flushing. Florida's "hot spots" include: the enclosed waters of the Indian River Lagoon and Tampa Bay and Palm Beach, Broward, Dade and Monroe Counties.

What is the impact on shellfish as it relates to "Clean Water"?
Shellfish are often referred to as the canary in the mineshaft. Shellfish farmers are almost always the first to know when there is a pollution problem in the watershed. Mollusks (oysters, clams, and mussels) filter tiny particles, including bacteria, as they pump water across their gills and into their stomachs. As a result, they have the ability to absorb the bacteria which are floating in surrounding waters and pass them through onto unsuspecting consumers.

How are houseboats defined?
A houseboat defined by Florida Statute Chapter 327 means any vessel which is used primarily as a residence for a minimum of 21 days during any 30 day period, in a county of this state, and this residential use of the vessel is to the preclusion of the use of the vessel as a means of transportation.

What do houseboats need to do in order to comply?
The houseboat must have a permanently installed toilet connected to a Type III marine sanitation device. The valve directing sewage needs to be set so as to prevent discharge of sewage into Florida waters. Type III marine sanitation devices and holding tanks should be pumped out at the nearest marina with a pumpout station.

What if I already have a Type I or Type II marine sanitation device?
A houseboat which has a Type I or Type II device must install a Type III device.

Our boat has a portable toilet. What do I do?
All waste from portable toilets shall be disposed of in an approved waste reception facility. Restroom toilets are not approved reception facilities. Some of the chemicals used in portable toilets do not break the waste down to acceptable levels nor do they kill disease-causing organisms. Marinas are encouraged to use funds from the grant program to install approved waste reception facilities at their site.

Are marine sanitation devices subject to inspection?
Yes. When the owner or operator is aboard, an officer may board a vessel with consent or if there is probable cause or knowledge to believe that a violation has occurred or is occurring. An officer may also board a vessel if the operator refuses or is unable to display the safety or marine sanitation equipment.

What are the fines for non-compliance?
$50.00 noncriminal infraction for compliance issues
$250.00 Civil penalty for discharge of raw sewage

The Florida DEP Division of Law Enforcement also manages the grant programs for The Clean Marina Program. For more information, contact Jan DeLaney, Program Manager, 850-245-2847







Prejudgment Interest in Admiralty

In admiralty cases, prejudgment interest, although within the trial court's discretion, should generally be awarded absent peculiar or exceptional circumstances. City of Milwaukee v. Cement Division, National Gypsum Co., 515 U.S. 189, 115 S.Ct. 2091, 132 L.Ed.2d 148 (1995); Orduna S.A. v. Zen-Noh Grain Corp., 913 F.2d 1149 (5th Cir.1990); Insurance Co. of North Am. v. M/V Ocean Lynx, 901 F.2d 934 (11th Cir.1990); Todd Shipyards Corp. v. Auto Transp., S.A., 763 F.2d 745 (5th Cir.1985); United States v. Central Gulf Lines, Inc., 747 F.2d 315 (5th Cir.1984); Alkmeon Naviera, S.A. v. M/V Marina L., 633 F.2d 789 (9th Cir.1980). The purpose of prejudgment interest is not to penalize the losing party but to fully compensate the prevailing party for the use of funds found to be rightfully his. See City of Milwaukee, 115 S.Ct. at 2096; Insurance Co. of North Am., 901 F.2d at 942.

Traditionally, some of the peculiar circumstances relied upon by various federal circuits to support the denial of prejudgment interests have been: (1) an improper or unwarranted delay of the action attributable to the plaintiff; (2) a genuine dispute over a good faith claim in a mutual fault setting; (3) equitable considerations which caution against an award; and (4) a damage award substantially less than that claimed by plaintiff. Reeled Tubing, Inc. v. M/V Chad G., 794 F.2d 1026, 1028 (5th Cir.1986). Another circuit has denied prejudgment interest where the parties have excluded prejudgment interest in their stipulation of damages, Grace Line, Inc. v. Todd Shipyards Corp., 500 F.2d 361, 366 (9th Cir.1974); or where the parties have asserted claims or defenses in bad faith, Darling v. Scheimer, 444 F.2d 514, 515 (9th Cir.1971). Still another circuit has deemed the uncertainty of the claim or damage as a peculiar circumstance. E.g. Sinclair Ref. Co. v. S/S Green Island, 426 F.2d 260, 262 (5th Cir.1970), contra, Ore Carriers of Liberia, Inc. v. Navigen Co., 305 F.Supp. 895, 896- 97 (S.D.N.Y.1969), aff'd, 435 F.2d 549 (2d Cir.1970).

In the recent City of Milwaukee decision, however, the United States Supreme Court has squarely held that neither a good-faith dispute over liability nor the existence of mutual fault are peculiar or exceptional circumstances which will justify the denial of prejudgment interest in an admiralty case. The court further stated that the liquidated/unliquidated damages distinction is of no significance on the issue of prejudgment interest in admiralty cases:
[T]hat distinction has never become so firmly entrenched in admiralty as it has been at law.... Any fixed rule allowing prejudgment interest only on liquidated claims would be difficult if not impossible to reconcile with admiralty's traditional presumption. Yet unless we were willing to adopt such a rule--which we are not--uncertainty about the outcome of a case should not preclude an award of interest. (citations omitted)City of Milwaukee, 115 S.Ct. at 2096.

Setting the Prejudgment Rate
In setting the rate of prejudgment interest in an admiralty case, the Court has broad discretion and may look to state law or other reasonable guideposts for a fair level of compensation. See Todd Shipyards, 763 F.2d at 753.;Noritake Company, Inc. v. M/V Helenic Champion, 627 F.2d 724, 728-30 (5th Cir. 1980);Platoro Ltd. v. Unidentified Remains of a Vessel, 695 F.2d 893, 907 (5th Cir.), cert. denied, 464 U.S. 818, 104 S.Ct. 77, 78 L.Ed.2d 89 (1983);
A Court may also look to the judgment creditor's actual cost of borrowing money, In Re M/V Vulcan, 553 F.2d 489 (5th Cir.), cert. denied, 434 U.S. 855, 98 S.Ct. 175, 54 L.Ed.2d 127 (1977), to state law, Geotechnical Corp. v. Pure Oil Corp., 214 F.2d 476 (5th Cir. 1954), or to other reasonable guideposts indicating a fair level of compensation. Appellate Courts have ruled that a trial court's establishment of a 10% rate did not constituted an abuse of discretion. Gator Marine Service Towing, Inc. v. J. Ray McDermott & Co., 651 F.2d 1096, 1101 (5th Cir.1981). Moreover, in Todd Shipyards, 763 F.2d at 753. a Louisiana Court believed that the judicial interest rates provided in article 2924 of the Louisiana Civil Code would undercompensate the Plaintiff, but that the prime rates available during the applicable periods were too high. Consequently, that Court adopted the statutory rates but ordered them to be compounded daily to approximate roughly the rate of return Plaintiff could have received. On appeal the appellate Court could find no perceived abuse of discretion either in this methodology or in the resulting award.







Independent Contractors with Seamen Status

Illustrative of the unbroken line of federal cases holding that persons working on ships for independent contractors or persons rightfully transacting business on ships can recover for damages due to shipowners' negligence are: Leathers v. Blessing, 1882, 105 U.S. 626, 26 L.Ed. 1192; The Max Morris, 1890, 137 U.S. 1, 11 S.Ct. 29, 34 L.Ed. 586; Gerrity v. The Kate Cann, D.C.1880, 2 F. 241; The Helios, D.C.1882, 12 F. 732, decision by Judge Addison Brown; Grays Harbor Stevedore Co. v. Fountain, 9 Cir., 1925, 5 F.2d 385; Tide Water Associated Oil Co. v. Richardson, 9 Cir., 1948, 169 F.2d 802; Brady v. Roosevelt S.S. Co., 1943, 317 U.S. 575, 577, 63 S.Ct. 425, 426, 87 L.Ed. 471. See also cases collected in 44 A.L.R. 1025--1034.


Craig v. M/V Peacock On Complaint Of Edwards, 760 F.2d 953, 961 (9th Cir.1985) citing Bullis v. Twentieth Century Fox Films Corp., 474 F.2d 392, 394 n. 10 (9th Cir.1973) (wherein the court noted it might be conceivable for an actor, bartender or musician aboard a vessel to qualify for seaman status, where for instance, a cruise ship advertised a Shakespearean festival en route, then the festival actors might be considered seaman since they contribute to the function of the vessel or to the accomplishment of its mission).

David A. Neblett







Jurisdictional Issues For SCUBA Cases

Borden v. Phillips, 752 So.2d 69, 72-73 (Fla.1st DCA 2000) concluded that admiralty jurisdiction did not exist and upheld a release under Florida law. In Borden, the diver surfaced and waived his hand in distress, but the captain misinterpreted the signal as an "o.k." signal and detached the emergency "tag line"--a floating rope enabling divers to pull themselves to the boat. See 752 So.2d at 71. The court held that admiralty jurisdiction was lacking over the wrongful death claim, because the activity at issue was scuba diving, not boating: [T]he decedent intentionally departed the [dive boat] to dive. This activity, scuba diving, was not dependent on his passage in the [dive boat]. Further, decedent ceased being a passenger when he entered the water. That the crew was allegedly negligent when it failed to respond to decedent's signal did not involve the operation or maintenance of the [dive boat], but was related solely to the activity of scuba diving.

In addition to Borden, the Florida state court case, two federal district courts have held there to be no admiralty jurisdiction in recreational scuba diving cases. In In re Kanoa, Inc., 872 F.Supp. 740 (D.Haw.1994), a scuba diver died when his lungs exploded from surfacing too rapidly without breathing. Although the dive began from a dive boat, the court held that admiralty jurisdiction did not exist, reasoning that the "relevant activity" was scuba diving, not boat transportation. 872 F.Supp. at 745-46. In Tancredi v. Dive Makai Charters, 823 F.Supp. 778 (D.Haw.1993), a scuba diver drowned during a dive from a dive boat. The court held that admiralty jurisdiction was lacking over plaintiff's tort claim, because the boat had "little, if any, impact on the events that transpired during Tancredi's dive that led to his death." Instead, the death was attributable to "negligent dive planning and supervision and the actions of the dive master in taking Tancredi to unsafe levels." 823 F.Supp. at 784. But see McClenahan v. Paradise Cruises, Ltd., 888 F.Supp. 120, 121-23 (D.Haw.1995) (holding that admiralty jurisdiction existed in recreational scuba-type diving case, and concluding that Kanoa, Inc. and Tancredi were overruled at least in part by Jerome B. Grubart, Inc. v. Great Lakes Dredge & Dock Co., 513 U.S. 527, 534, 115 S.Ct. 1043, 130 L.Ed.2d 1024 (1995), a Supreme Court case not involving recreational scuba diving).

Although admiralty jurisdiction has been recognized in other recreational scuba diving cases, many of those cases are distinguishable by the role played by the boat in causing the injuries. As the court did in Cutchin, 1999 AMC at 1379-81, admiralty jurisdiction was held to exist in a case involving recreational scuba diving, despite the absence of direct involvement of a boat. See Kuntz v. Windjammer "Barefoot" Cruises, Ltd., 573 F.Supp. 1277, 1280 (W.D.Pa.1983). Admiralty jurisdiction also existed where the dive boat crew failed to render medical assistance to a diver after reboarding the dive boat. See Sinclair v. Soniform, Inc., 935 F.2d 599, 600-02 (3d Cir.1991).(federal court has admiralty jurisdiction over claim arising from vessel's crews' failure to administer proper care for decompression sickness suffered during scuba diving excursion in navigable waters); Courtney v. Pacific Adventures, Inc., 5 F.Supp.2d 874 (D.Hi.1998)(finding that a diving accident in navigable waters had a potentially disruptive impact on maritime commerce and dive boats were engaged in activity substantially related to traditional maritime activity). See also Mink v. Genmar Indus., Inc., 29 F.3d 1543, 1545-46 (11 Cir.1994).







Limitation of Liability Actions

LOLA only permits boat owners to limit their liability for loss, damage, or injury if the act, damage or injury occurred without the owner's privity or knowledge or malfeasance and/or nonfeasance. 46 U.S.C.App. § 183 Determining whether LOLA applies instead requires the Court to go through a two-step analysis. Hercules Carriers, Inc. v. Florida, 768 F.2d 1558, 1563-64 (11th Cir.1985). First, the court must determine what acts of negligence or conditions of unseaworthiness caused the accident. Second, the court must determine whether the shipowner had actual knowledge or privity of those same acts of negligence or conditions of seaworthiness. Id.







Removal to Federal Court

A defendant or defendants desiring to remove any civil action or criminal prosecution from a State court shall file in the district court of the United States for the district and division within which such action is pending a notice of removal signed pursuant to Rule 11 of the Federal Rules of Civil Procedure and containing a short and plain statement of the grounds for removal, together with a copy of all process, pleadings, and orders served upon such defendant or defendants in such action.
(b) The notice of removal of a civil action or proceeding shall be filed within thirty days after the receipt by the defendant, through service or otherwise, of a copy of the initial pleading setting forth the claim for relief upon which such action or proceeding is based, or within thirty days after the service of summons upon the defendant if such initial pleading has then been filed in court and is not required to be served on the defendant, whichever period is shorter.
If the case stated by the initial pleading is not removable, a notice of removal may be filed within thirty days after receipt by the defendant, through service or otherwise, of a copy of an amended pleading, motion, order or other paper from which it may first be ascertained that the case is one which is or has become removable, except that a case may not be removed on the basis of jurisdiction conferred by section 1332 of this title more than 1 year after commencement of the action.

Since the procedure in removal cases is now governed by the Federal Rules of Civil Procedure [Rule 81(c) ] and Federal Rules of Criminal Procedure [Rule 54(b) ], the detailed directions of the various sections with respect to such procedure were omitted as unnecessary.

1949 Acts. Subsection (b) of section 1446 of Title 28, U.S.C., as revised, has been found to create difficulty in those States, such as New York, where suit is commenced by the service of a summons and the plaintiff's initial pleading is not required to be served or filed until later.

The first paragraph of the amendment to subsection (b) corrects this situation by providing that the petition for removal need not be filed until 20 days after the defendant has received a copy of the plaintiff's initial pleading.

This provision, however, without more, would create further difficulty in those States, such as Kentucky, where suit is commenced by the filing of the plaintiff's initial pleading and the issuance and service of a summons without any requirement that a copy of the pleading be served upon or otherwise furnished to the defendant. Accordingly the first paragraph of the amendment provides that in such cases the petition for removal shall be filed within 20 days after the service of the summons.

The second paragraph of the amendment to subsection (b) is intended to make clear that the right of removal may be exercised at a later stage of the case if the initial pleading does not state a removable case but its removability is subsequently disclosed. This is declaratory of the existing rule laid down by the decisions. (See for example, Powers v. Chesapeake etc., Ry. Co., 169 U.S. 92.)

Plaintiff waived any objection to defendant's alleged failure to verify removal petition by not raising issue before district court. Financial Timing Publications, Inc. v. Compugraphic Corp., C.A.8 (Minn.) 1990, 893 F.2d 936.

Procedural defects in removal of action may be waived by failure to make timely objection before case proceeds to merits; however, defects going to subject matter jurisdiction of court cannot be waived and may be raised at any time. Libhart v. Santa Monica Dairy Co., C.A.9 (Cal.) 1979, 592 F.2d 1062.

Plaintiff waived timeliness of notice of removal as basis for remand where plaintiff did not serve or otherwise provide defendant with copy of original complaint more than 30 days prior to filing of notice of removal, and plaintiff failed to raise timeliness of notice of removal as basis for remand. Haisch v. Allstate Ins. Co., D.Ariz.1996, 942 F.Supp. 1245.

Notice of removal given to plaintiff's counsel four days after removal petition was filed and 28 days after action was originally filed in state court was timely. Barrett v. Southern Ry. Co., D.C.S.C.1975, 68 F.R.D. 413.

David A. Neblett







Lloyd's Open Form

The Lloyd's Open Form "LOF" is an internationally recognized standard salvage agreement that is carried on the bridge of virtually every vessel in the world. The updated and improved version "Which was launched on Friday 1 September 2000" marks its tenth revision since Lloyd's of London first devised the contract in 1908. The new version of the form has been shortened from six pages to just two by removing most of the legal and procedural information and placing it in a separate reference document. The language used has also been simplified to take account of the increasingly international nature of ships' crews. The form was created by Lloyd's in order to save a ship's master from having to take part in time consuming contract negotiations while the vessel was in jeopardy. The LOF has been based on a "No Cure No Pay" relationship between the salvor and the shipowner. Agreement on the use of the contract means that all parties know exactly what terms are being signed, so that salvage services can commence with a minimum of delay. The form also provides a framework for the collection of security to protect a salvor's claim and arbitration machinery in the event that salvors and the owners of the vessel cannot agree on the payment for successful services. Although Lloyd's plays no part in the arbitration, it retains the services of a panel of experienced arbitrators to hear cases arising under the form.







Going Down On Legal Diving Issues
by Mark Ercolin
Attorney At Law

Diving is inherently dangerous. Nature designed humans to be land creatures, and they are normally ill suited for spending long amounts of time underwater. However, since people became interested in exploring the sea, they have also been interested in exploring and working below it, as well.

Interest in remaining under water for a sustained time period can certainly be dated back to the days of Alexander The Great, whom in legend ordered the manufacturing of a glass diving bell, so that he might observe the wonders of the deep.

However, man's ability to stay for long periods under water was fairly much restricted to lung capacity, the limited use of snorkels and the diving bell until the 19th century, when the technology was finally developed to pump air to a person at increased depths in a fully encompassing dive suit.

Then, just before World War II, such pioneers as Jacques Cousteau began to develop methods for people to take delivery of self contained bottled air at depth into the lungs without injury. This was the beginnings of scuba diving (SCUBA is actually an acronym for Self Contained Breathing Apparatus), and a popular increase in diving in not only the work place, but in recreational sport.

Now one might think that this increased interest in a potentially dangerous activity might result in a clear set of laws and precedents which would fully control the actions of those who participate in that activity. But, I have not found that assumption to be particularly true. In fact, much of what occurs in certain areas of diving, such as the recreational sector, is virtually self-regulating.

Basically, Florida has two significant statutes which directly concern diving. One is Fla.Stat. 327.331, that deals most specifically with the use of a dive flag in state waters. The other is Fla.Stat. 381.895, that deals with purity standards for compressed air at diving facilities. (see both statutes in Appendix I).

Significantly, Fla.Stat. 327.331 does actually give a definition for what a diver is:
"Diver" means any person who is wholly or partially submerged in the waters of the state and is equipped with a face mask and snorkel or underwater breathing apparatus.

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