Archive for February 2012

The Storm Lake Iowa Laass v. Brunswick case has focused attention on outboard marine drives striking submerged objects and flying back up into the boat. In the Storm Lake accident, a ten year old boy, David Paul McFarlin was killed on May 31, 2010. A 175 HP Mercury outboard struck a submerged dredge pipe, flipped back up into the boat, and the boy was killed by its propeller.

First, a point of clarification. The U.S. Coast Guard does not recognize accidents in which people are on boats or otherwise not in the water when they are struck by propellers as propeller accidents, so this is “officially” not a propeller accident.

Marine drive manufacturers use relief valves and check valves in the trim systems of stern drives and larger outboards to cushion the blow and absorb the energy of striking submerged objects. The relief valves allow the cylinder rod to extend (drive to swing up as it dissipates energy), then the check valves allow the cylinder piston to settle back down to a “memory” piston. Mercury Marine is well known for conducting log strike tests which we discuss on our Laass v. Brunswick page, and supply an early video near the bottom of this page.

We often see U.S. Coast Guard Boating Accident Report Database (BARD) reports in which an outboard was torn from or broke off the transom. Some of these outboards sink, while others remain attached by cables, hoses, and/or fuel lines. In some portion of these instances, the outboard strikes a submerged object and actually flies up / flips up and lands in the boat. As a result, people in the boat can be struck by the outboard or cut by its still rotating propeller.

We decided to investigate BARD and some other sources to gain some greater understanding of these types of accidents and perhaps some insights into their frequency. Read More→

Kirsty MacColl, A High Profile Boat Propeller Accident From 2000.

Kirsty MacColl

Kirsty MacColl

Kirsty MacColl, well known female British recording artist, was scuba diving in Mexico off Cozumel Island with a friend (James Knight) and a dive master (Ivan Diaz) on the afternoon of 18 December 2000. As they surfaced from a dive she saw a large powerboat was bearing down on her and her two sons (13 and 15 years of age). According to reports, she swam to one, moved him out of the way, then grabbed her other son to protect him. She was struck by the propeller, “killed instantly, her body nearly sliced in half by the propeller” according to a report published by her mother, Jean Newlove / Jean MacColl. The son she first pushed out of the way was also struck, but not severely. The boat belonged to a wealthy, influential Mexican businessman. He claims the boat was operated by an employee, Jean MacColl suspects it was driven by the wealthy businessman. Kirsty MacColl’s mother and those who assisted her, were unable to penetrate the protection, challenges, and roadblocks surrounding the event to positively discern the truth. The investigation was officially dropped in December 2009.

Kirsty MacColl had been working 18 months straight and was looking forward to the trip. She planned to introduce her sons to scuba diving in the beautiful diving environment at Cozumel. Her mother dropped by the night before they left the U.K. for supper, and they made plans for Christmas. Kirsty was killed at age 41 in a boat propeller accident that made world headlines. Her funeral was held in Mortlake Crematorium in London.

Kirsty MacColl was beloved by many and still has a strong following. Read More→

Michael Hinton was trying to retrieve his son’s hat which had blown into the water on September 10, 2000. He was on the swim deck, crouched, hanging onto the swim ladder and getting ready to reach for the hat. The swim ladder was anchored to the transom by a nylon strap through a grommet. The grommet broke and Hinton fell in, went under a few seconds, then surfaced several yards away.

The boat operator backed up to retrieve Mr. Hinton, he swam toward the stern, as Mr. Hinton looked up he saw the boat rapidly approaching, hit his chin on the swim platform, one of his legs was pulled into the propeller and severely injured, and later amputated.

Michael Hinton claims the boat had a defective swim ladder.

As noted above, the trial focused on the ladder, but they would not have had a trial if he had not been injured by the propeller.

The Jury decided in favor of OMC on February 2, 2012. Read More→

0 Categories : Legal Shorts

Many industries have created “checkoff” programs to generate funds to promote their “produce” or “product”. “Checkoff Programs” originally referred to programs where the manufacturer/producer was presented a checkoff box at time of sale they could check if they elected to participate in the program. Early programs were very successful, and more quickly followed. Some are mandatory, but they are often referred to as “Checkoff Programs” as well. Agriculture produce growers widely adopted Checkoff Programs. Funds are used to promote their produce in general, not a specific brand. Among the more popular agricultural checkoff programs are: “Beef, It’s What’s for Dinner” and “Got Milk”.

Prop Aware Propeller Safety Campaign

Australian Take Care Be Prop Aware campaign logo

Manufacturing industries have also turned to the practice. “Discover Boating” is an example.

We suggest a checkoff program for “Propellers” could be used to generate funds to promote recreational boat propeller safety. Currently, most of the focus on propeller accidents is on the manufacturer of the stern drive or outboard involved in the accident. The entire boating industry is benefiting from stern drive and outboard production, and most notably, those manufacturing propellers would be in a far different situation if outboards and stern drives did not exist. We suggest propeller manufacturers could shoulder at least a small portion of a major propeller safety initiative by voluntarily donating to checkoff funds. Read More→

We propose a tax on fatal boat propeller accidents similar to a tax on pollution as a means of encouraging marine drive companies to prevent propeller injuries.

The U.S. Coast Guard Advanced Notice of Proposed Rulemaking surrounding propeller and carbon monoxide safety (USCG-2011-0497) asked for public comments on possible strategies to reduce propeller injuries. Thinking about the continuing inaction of the boating industry when many good tools are readily available, I began to look to examples in other industries, where firms previously resistant to human welfare issues had been energized for change. I quickly came to the automotive industry and how they originally resisted calls to improve mileage and/or reducing emissions. Established regulatory targets forced them to action (new car emission limits and fleet mileage targets).

Propeller Fatality Permit mockup

Propeller Fatality Permit mockup

Somewhat similar process have been used on broader industries to regulate emissions. Notable policies include:

  • Taxing of emissions
  • Cap and Trade of emissions permits (credits)

We regulate emissions for public welfare. Beyond the desire for clean air, emissions kill asthmatics and others with breathing issues, as well as bring on other medical problems. Automotive mileage is regulated to reduce fuel consumption which reduces emissions.

Our parallel idea is to consider fatalities from boat propeller accidents to be parallel to boating emissions and regulate them with a cap and trade system as well.

We are not saying the program as described below should be implemented. We are just presenting it to generate discussion. Some version of this approach might be an effective incentive in encouraging the industry to take action while not placing too large of a burden upon them. We welcome your comments.

We note the U.S. Coast Guard added a data field to their Boating Accident Database (BARD) in 2009 for “engine manufacturer”. Many accident reports have no entry in that data field, but it offers an opportunity to associate propeller fatalities with the manufacturer of the stern drive or outboard motor involved in that accident. We suggest strongly encouraging state boating law administrators to encourage those recording accident data to make sure they record the engine manufacturer data for propeller fatalities and possible propeller fatalities. We also suggest they capture a digital image of the drive on the boat when possible to backup that identification.

We also encourage providing a means by which those reporting accidents can accurately distinguish between OMC and Bombardier drives (paint color, markings, decals, significant features, build dates, etc). This would be useful in distinguishing boats powered by legacy OMC drives, vs. boats powered by more modern (2001 or later build date) Bombardier drives.

Armed with that information, the annual number of recreational boat propeller fatalities tied to each marine drive manufacture can be determined, as well as annual trends by manufacturer.

Below we present a Propeller Fatality Cap and Trade with a Tax on Over Cap Fatalities. This approach is a hybrid of two methods we presented earlier Propeller Fatality Tax, and a Propeller Fatality Cap and Trade.

Please note, the numbers and dollar amounts below in bold are just placeholders to begin a conversation. Read More→

We discuss Propeller Fatality Cap and Trade With a Tax on Over Cap Fatalities as a means to reduce recreational boat propeller fatalities in another post. While developing those concepts, we explored some other venues as well. The less desired approaches are provided here as reference material.

In general, they present an approaches similar to cap and trading of emissions.

Two such approaches are presented here

  • Propeller Fatality Tax
  • Propeller Fatality Cap and Trade

The numbers presented in bold are merely placeholders to generate discussion. Read More→

We are working on a propeller safety proposal that requires an estimate of the percentage of U.S. outboard and sterndrive boats powered by the various outboard and sterndrive manufacturers that are in the field, called the boat park by other nations. These numbers may be considerably different than current market shares due to some manufacturers having large populations of legacy drives in the field. In addition, some manufacturers no longer in operation (like OMC) still have a large population of drives in the field.

We notice the U.S. Coast Guard has supplied a data field for engine manufacturer beginning in their 2009 Boating Accident Report Database (BARD). While this information is only being captured for a fraction of the accident reports, we still submit it as one means of estimating the market share of boats powered by manufacturers of outboards and stern drives in the field.

We created a spreadsheet and examined 2009 and 2010 BARD. We established a subset of data by year that only included outboards and sterndrives, then we counted those belonging to each manufacturer. Several small manufacturers only had one drive. We eliminated manufacturers that did not have at least two drives listed in at least one of the two years we analyzed. Then we grouped the results by manufacturer (like OMC= OMC + Evinrude + Johnson). Read More→