Recently listened to author Stephen King, popular for horror and fantasy novels, describe his pathway to creating published work. Hearing that and thinking about Summer coming, wanted to share a case that touches both themes.

In its simplest description, windsurfing (or sailboarding) involves navigating what looks like  a surfboard onto which has been affixed a mast with boom, allowing the windsurfer to steer by manipulating the boom, affecting the sail. One day, a Friday at lunchtime, an attorney called on us for help. The underlying case was one by the client-plaintiff for serious personal injury damage arising from the head-on collision between two sailboards in a river. (More about that later.) Two years before, this lawyer had filed the case as a simple negligence action, based on state common law, in state court. That Friday morning, the assigned judge had held an “issue conference” in advance of jury trial that was to start on Monday. The judge indicated that he was going to “non-suit” (dismiss) the case as having no legal foundation in law because the plaintiff had been injured through an inherent risk of the sport; the Primary Assumption of the Risk Doctrine applied, barring liability. (Why the defense had not earlier demurred or moved for summary judgement is unknown.)

Needless to say, the plaintiff’s lawyer was a bit anxious. We instructed counsel to immediately file with the Clerk of Court’s office a form dismissing the entire case without prejudice; then to bring the plaintiff to our office that Monday, instead of trial. Three reasons: (1) although state statute of limitation had passed, the general maritime law time limitation of three years still was open; (2) the river was a “navigable waterway” and the sailboard arguably was a “vessel in navigation” (more about that later) providing a United States District Court with admiralty jurisdiction; finally, (3) under admiralty law, also known as the general maritime law, the defense of primary assumption of risk is not allowed. On Monday, the windsurfer retained us in association with his original lawyer. Because the state case had been dismissed without prejudice to renewing the underlying claim, we filed suit in the United States District Court on Tuesday, pleading the suit being in admiralty brought pursuant to 28 U.S.C., §1333. In a “belt and suspenders” type tactic, we described the action as being one within the meaning of  F.R.Civ.P. 9(h) [“ If a claim for relief is within the admiralty or maritime jurisdiction and also within the court's subject-matter jurisdiction on some other ground, the pleading may designate the claim as an admiralty or maritime claim . . .”] Then the fun began.

That the collision had occurred at all was the exact opposite of “miracle.” The two windsurfers had never met. they had launched from opposite banks of the river. They coincidentally launched within minutes of each other. The river was a half-mile wide. There was other river traffic. It was clear. It was windy (of course). Each windsurfer’s destination was the opposite shore. As these sailboards approached each other, our client had the wind to starboard (coming from right-ish to left-ish). When each mariner saw they were on a collision course, each acted to avoid the other. Our client knew the Inland Rules of the Road, especially Rule 12 (Cite, 33 CFR § 83.12), which mandates:

(a) When two sailing vessels are approaching one another, so as to involve risk of collision, one of them shall keep out of the way of the other as follows:

(i) When each has the wind on a different side, the vessel which has the wind on the port side shall keep out of the way of the other.

Our client had the right of way. The oncoming vessel having the wind to port, it was to give way to our client. Unfortunately, the other mariner had the the opposite understanding of Rule 12: blam! The nose of the other sailboard broke our client’s ribs, lacerated his liver; he almost drowned, and was never the same. The offending windsurfer challenged the Honorable Court’s admiralty jurisdiction through a motion to dismiss pursuant to F.R.Civ.P. 12(b)(6), arguing the sailboard was not the sort of watercraft within the purview of admiralty: allegedly it was not a vessel for maritime law purposes.

We successfully opposed the motion, in part arguing, by analogy, that even three men in a tub would have been subject to admiralty law. We cited geographically widespread instances of courts adopting the same analysis and that analogy, our favorite citation being:

Even far more exotic watercraft have been deemed vessels. . . . No doubt the three men in a tub would also fit within our definition, and one probably could make a convincing case for Jonah inside the whale. Thus K-1 and ART-402 are vessels.

Burks v. Am. River Transp. Co., 679 F.2d 69, 75 (5th Cir. 1982)

Our argument necessarily focused upon two elements:

 (1) These sailboards’ activities had the potential to affect maritime commerce, the river was a major passageway to an inland deep-water commercial port (See, Sisson v. Ruby, 497 U.S. 358, 363, 111 L. Ed. 2d 292, 110 S. Ct. 2892 (1990)).

(2) Windsurfing on the navigable waterway bore "a substantial relationship to traditional maritime activity." (Foremost Insurance Co. v. Richardson, 457 U.S. 668, 675 n. 5, 73 L. Ed. 2d 300, 102 S. Ct. 2654 (1982)).  

We additionally cited the definition in 1 U.S.C., §3: “The word ‘vessel’ includes every description of watercraft or other artificial contrivance used, or capable of being used, as a means of transportation on water.”

In conclusion, our advice is to wear sun protection, drink plenty of water and be safe.

This entry has been created for information and planning purposes.

It is not intended to be, nor should it be substituted for, legal

advice, which turns on specific facts.