Archive for October 2014

U.S. Coast Guard emblemThe U.S. Coast Guard National Boating Safety Advisory Council (NBSAC) will be holding its 92nd meeting on November 6th-8th, 2014 in Arlington, Virgina.

Nonprofit Grant Comments

For the first time ever, they invited public comments about non-profit grant interest areas before the meeting. Each year the Coast Guard awards nonprofits a tidy some of money to promote boating safety and to run some studies, like the annual life jacket wear rate study. In 2013, the grants totaled over $5.5 million. Many boating safety organization live and die by these grants. Read More→

0 Categories : Regulations

Konstaninos Angelopoulos filed a $30 million lawsuit against Volvo Penta, Grady-White, Norfolk Marine Company, and Richard Harris (boat owner and operator). The suit is for injuries his daughter, A.E. Angelopoulos, received in a boat propeller accident back on 30 June 2011.

Then 12, she was entrapped by the Duoprop twin contra-rotating propeller stern drive on a 24 foot 2000 Grady White Sailfish boat she was boarding after tubing. Some reports indicate she was drug into the propeller by a tow rope caught in the prop. It took rescue crews about 90 minutes to get the propeller off the boat so she could be brought to shore. Rescuers had her breathing through a snorkel a while, then found a scuba mask and scuba tank as her head was underwater. Read More→

0 Categories : Legal Shorts

This series of posts discusses the duty of boat manufacturers, marine drive manufacturers, and other boating product manufacturers to monitor their products after sale to identify potential safety issues. Manufacturers are legally required to warn boaters (customers) of significant risks discovered after sale.

These posts are NOT professional legal advice. They were written to stimulate action and discussion on these topics.

A major resource for monitoring boat and marine drive accidents after sale is the U.S. Coast Guard Boating Accident Report Database (BARD).

This series of articles reveals as many as 32 to 45 percent of accidents annually reported to USCG are invisible in the BARD database as supplied to manufacturers and safety experts. This articles call for making those accidents visible, and explain how that could be done.

Our in-depth coverage is divided into 5 segments.

1. Handout summarizing our coverage
2. Post Sale Duty to Monitor Product Risks / Accidents: Boating Industry
3. Moral Responsibility to Monitor Products Post Sale: Boating Industry
4. How to Monitor Boating Product Accidents / Risks Post Sale
5. Full access to BARD is CRITICAL for monitoring product safety after sale
6. We encourage you to return to item #1 the summary handout

Read More→

Recalls from USCG Boating Safety Circular 87

Recalls from USCG Boating Safety Circular 87

Manufacturers are morally responsible for monitoring post sale accidents of their products and warning customers of those risks when they become significant.

Some manufacturers claim their monitoring costs (dollars and manpower) would exceed any possible benefits received by monitoring, and others claim it is to costly or impossible to identify or communicate with users of their products.

While those are legitimate concerns, some level of monitoring is typically still possible, and some means of notification is usually available as well (Press releases, company web site, trade shows, trade publications, distributors, etc.). Most would find it more unreasonable that a boating industry manufacturer was unable to take advantage of one or more of the monitoring opportunities listed on our Tools to Monitor Boating Products Post Sale page. Read More→

Many opportunities exist for manufacturers of boating products to monitor their products after sale for previously unknown safety issues, risk, and hazards.

The legal, regulatory, and moral obligations to monitor boating products post sale / post market / conduct post sale surveillance and vigilance are detailed in two previous posts.

This series of posts is NOT legal advice. The articles were written to stimulate action and conversation on this topic

This post is part of a series of posts. Links to the other posts can be found in the Introduction.

Below we will discuss some of the major sources and opportunities for post sale marketing, then conclude with an extensive list of those sources. Read More→

2013 BARD query sample

2013 BARD query sample

Before anyone gets caught up in the title and thinks we are asking for full access to private information in BARD, please put that to rest. We are not calling for access to Personally Identifying Information (PII). We are calling for access to accidents that are hidden from view.

This post is part of a series of posts. Links to the other posts can be found in the Introduction.

As laid out in our recent series of articles:

  • Boating industry manufacturers have legal obligation in the U.S. to report significant safety hazards discovered by them post sale to the U.S. Coast Guard and to take appropriate actions.
  • The legal duty (responsibility) boating manufacturers in the U.S. owe their U.S. customers to actively monitor their products post sale and warn existing owners of significant safety risks discovered post sale is currently in a state of flux. Some states/courts say yes, some courts say no, some courts base decisions on circumstances (size of manufacturer, ability to identify and warn customers, cost to warn vs. risk, etc.), others directly apply the Third Restatement of Torts.
  • In the European Union (EU) boating industry manufacturers have a regulatory obligation to actively monitor their products post sale and to warn their customers of significant safety risks identified post sale meeting certain criteria. The E.U. defines a stringent criteria for such monitoring.

    Product Safety in Europe: A Guide to Corrective Action Including Recalls

    “Producers and distributors must have procedures for monitoring problems with their products. This means you need to have systems to collect and analyze the following information:

    • Reports of accidents involving your products
    • Complaints from customers, directly or via retailers
    • Warranty claims
    • Insurance claims or legal actions
    • Non-compliances reported by the company’s quality control procedures or by other organisations
    • Results of product testing
    • Information from service engineers
    • Reports on returned components and products
    • Any evidence of hazards arising from sales to unexpected user groups
    • Any evidence of consumer abuse or misuse of the product
    • Any evidence of malicious tampering with products

    This information needs to be reviewed regularly for signs that there may be a risk to consumers from any of the company’s products. This is especially important when the design of products changes or new component suppliers are used. If distributors have this information, they should share it with producers.”

  • Boating industry manufacturers have a moral obligation to monitor the post sale performance of their products in the U.S. for significant safety issues and protect their customers by warning then, recalling the products, or taking other appropriate actions.
  • U.S. Coast Guard Boating Accident Report Database, BARD, is or should be a leading external source for monitoring boating accidents for most boat builders and marine drive manufacturers in the United States.

Read More→

Three men in a small boat were about a mile and a half off Haulover Inlet / Haulover Marina (Florida) to snorkel October 17, 2014. Two of the men were in the water snorkeling in the early afternoon. At least one of the three men saw and approaching boat and urged those in the water to swim back to the vessel. One man was a little further away and did not make it back. He was struck by the propeller(s) of the passing speedboat.

The injured man has not yet been publicly identified, nor has his condition after being taken from the scene.

Update The injured snorkeler has since filed a lawsuit against the vessel

The snorkelers were in a small boat powered by a 200 horsepower Yamaha outboard.

The accident is capturing the attention of the press due to the boat that struck the snorkeler, a gold colored Midnight Express powered by 5 large horsepower outboards that appear to be Mercury Marine Verado outboards. The outboards are custom colored to match the boat, making quite an impression as seen below.

Midnight Express boat involved in accident

Midnight Express boat involved in accident
photo from Local 10 News video.

Read More→

Nicholas Milligan's Boat / RIB

Investigators at the 2013 Nicholas Milligan family accident in the U.K.

Manufacturers can be responsible for tracking post sale accidents worldwide such as this very high profile U.K. accident in which two were killed and two were critically injured. Boat builders, marine drive manufacturers, and other boating industry manufacturers have a duty to design, manufacture, and sell safe products. However, it does not end there. A post sale (post-sale) duty to warn of hazards, risks, accidents, incidents discovered after sale exists in some situations. Monitoring post sale risks is often called monitoring post sale performance by the legal community.

We note this post sale monitoring requirement can extend to aftermarket parts and accessory manufacturers as well.

The point of this post is that in order for a manufacture to warn customers of post sale of risks discovered after the sale, the manufacturer must monitor its products in the field, sometimes called post sale or post market surveillance to identify those risks. Read More→