One of the most stimulating aspects of litigating the maritime law is the prevalence of judge-made law(case law). Another feature is encountering foolish acts by recreational boat operators doing things they would not dream of doing when driving a vehicle or riding a bike. Recently viral was a video of a whale breaching then slamming down upon a boat that got too close off Rye, New Hampshire. No one hurt there. However, Berschler Associates, PC recently achieved justice for a passenger severely injured when the driver of the speedboat decided it would be fun to initiate a ”sideshow,” doing donuts in the water. A key feature of this case was the issue of punitive damage exposure. Could our client punish the driver financially for being reckless? Under state law, our client would have to prove malice to support punitive damages. “malice” in state law requires proof by clear and convincing evidence that defendant’s tortious wrong amounted to “despicable conduct” and that such despicable conduct was carried on with a “willful and conscious disregard” of the rights or safety of others. (Civil Code section 3294(c)(1); College Hospital, Inc. v. Superior Court (1994) 8 Cal. 4th 704, 725.) Berschler Associates avoided that “dead end”: by invoking the General Maritime Law (“GML”) pursuant to 28 U.S.C., §133(1) [The “Savings to Suitors” clause allowing state courts jurisdiction to try certain maritime claims.] In Exxon Shipping Co. v. Baker , 554 U.S. 471 (2008), the U.S. Supreme Court discussed the long history of punitive damage being available under the GML. Our client’s challenge was to prove by a preponderance of the evidence that the driver was indeed reckless, not merely negligent. We have a video clip of the boat at speed and knew of its make and model from which we obtained specifications of build and performance from the manufacturer. Using these, our expert was able to “reverse engineer” to determine speeds, turning radius and G-forces. As seen in the diagram below, we established the speedboat was traveling 49.6 mph when it hit a wake of another boat also “donuting” in unison. The G-force created was ~4.9 upon the passengers, one of whom was thrown into our client. Reckless enough for you? Everyone in the case thought so, too. Success in litigation is a product of hard work and thinking outside the box.

“Act in haste. Repent at leisure.” Hon. William Congreve, 1692.

Achievement: Bookmarks on a 5-decade long Admiralty Law Career

In a traumatic experience, the typical victim goes into fight, flight, or freeze mode. A large approaching vessel pierced our client’s yacht with a long pulpit protruding from the bow which ripped through the cabin. The pulpit hit within feet of where one of our clients was standing. Thankfully, our clients were not hurt physically. However, they suffered substantial emotional injuries, which manifested later. As the vessel came careening towards their own, our two clients’ thoughts ranged from concern, to fear, to panic. One of our clients feared losing his family on board. Panicked, he tried to save them; ultimately feeling helplessness as he witnessed and felt the impact. His spouse was frozen with fear, as death loomed. In our earlier blog post, “Seattle Ferry Pier Allison,”(August 15, 2022) we wrote, “Admiralty law is more conservative in the United States on NIED standing…. [a]would-be claimant must either have suffered bodily injury as a result of the event or been in a “zone of danger”; that is to say placed in immediate risk of substantial physical harm or death. Proving the clients had been psychologically damaged became the focus of this case. After the collision, our clients began demonstrating symptoms of discrete psychological injuries including anxiety, nightmares, and depression. One of our clients had chest pains as a result of these psychological injuries. The defendant argued to minimize their injuries. We retained a forensic psychologist to document possible evidence of injuries. The expert tested and interviewed. Our expert diagnosed Post Traumatic Stress Disorder (PTSD) and Persistent Depressive Disorder (PDD). The expert concluded that our client would need future care. After over 200 hours of work, Berschler Associates, PC brought this case to trial in the U.S. District Court. The requirements to qualify for NIED were clearly presented at trial. Given the factual findings the Court made with respect to our clients, each received an award for personal injury damage. Our clients received the justice that they each deserved. This is one example of how Berschler Associates, PC gets their clients highly compensated for the hidden pain and suffering that is present in significant bodily injuries. Let Berschler Associates, PC help you recognize all of your injuries, and not just some. DISCLAIMER: While every effort has been made to ensure the accuracy of information provided, it is not intended and should not be considered as legal advice. Individual situations differ and should be discussed with an expert and/or lawyer. Please contact our office if you seek more specific technical or legal advice on the information provided or related topics. Thank you.