Boating Industry Needs Legal Defense Against Emerging Propeller Safety Devices / Technologies

Listman Trial - Jay O'Sullivan

Jay O’Sullivan working the Listman Trial for the Defense: image courtesy of CVN

The boating industry has been pretty successful in defending propeller injury cases when the plaintiff presents a traditional propeller guard (ring or cage type guard) as the exemplar, example of how the defendant could have prevented the accident. This post reviews those defenses, reviews how some modern day products are challenging those defenses, and how some new propeller safety products coming down the pipeline may provide even more challenges for the boating industry’s conventional courtroom defenses.

If the boating industry hopes to keep winning in court, they may need to come up with some new defenses.

As mentioned earlier, the industry has been doing pretty good defending against conventional propeller guards. Their courtroom “dog and pony show” is highly polished, backed up with recognized industry experts, and very successful.

Boating Industry’s Primary Defenses Against Traditional Propeller Guards

Propeller guards:

  • Can entrap people’s limbs
  • Have a larger cross sectional area than an open propeller so they hit more people and cause blunt trauma injuries that can be more serious than “clean” propeller wounds
  • Reduce top speed, increase time to plane
  • Increase drag, fuel consumption, and emissions
  • Can be fouled weeds which can disable the boat
  • Can damage the drive (drive not designed to support them or the loads created by them when turning)
  • Can damage the propeller (cavitation)
  • Can break / are not durable
  • Can be crushed into the propeller and disable the drive
  • Create boat handling issues
  • Increase draft
  • Are only possibly useful in certain very specific, low speed situations

While many other objections to propeller guard are mentioned at times, the industry tends to rely on the ones above in court.

In addition to the defenses specific to conventional propeller guards listed above, the industry employs some defenses not specific to propeller guards as well.

Other Defenses used in propeller injury cases include:

  • Trying to lay the blame on the boat operator and/or the injured party by saying they contributed to the accident by their actions
  • Claiming open unguarded propellers are an open and obvious danger
  • Claiming the injuries were not caused by the propeller, or at least the most serious injuries were not caused by the propeller. They claim they were caused by striking the boat, the skeg, or anything besides the propeller.
  • Claiming no boat builder or drive manufacturer has ever sold guards as original equipment on their boats or drives.
  • Claiming propeller accidents are very rare
  • Claiming this exact accident scenario never previously occurred

A list of more recent defense techniques employed by the industry is on page 133 of our houseboat report.

The boating industry’s flurry of objections to conventional propeller guards in combination with the other defenses listed above have been very successful for them since they lost the Federal Pre-emption defense a decade ago in late 2002.

However, modern times have added some new propeller safety products and identified a few more historical products that are becoming a bit troublesome for the industry in court.

Before anyone manufacturing one of these devices responds telling me their device does not have the problems the industry claims they do, PLEASE NOTE – I am not saying they do. I am only saying the industry claims they do.

Modern Day Propeller Safety Products

Since the industry began developing its courtroom defenses against conventional propeller guards back in the 1970’s (prior to the Federal Pre-emption defense), some new prop guard designs, propulsion technologies, and other boat propeller safety devices have entered the market or became seen as specific threats to the industry’s conventional defenses:

  • Dick Snyder’s 1989 Propeller Guard – the industry claims Mercury Marine only built it for that specific military use and their tests at SUNY showed it was not useful for protecting people in normal situations.
  • Water jet propulsion / Pump Jets – the industry says water jets are not efficient, have poor steering in off throttle conditions, high pressure water can enter body orifices. Pump jets are only available in small sizes.
  • Outboard Marine Corporation (OMC)’s Ring Guard / Gale Guard – the industry claims the guard was for protecting the propeller not for protecting people. But has some problems with that defense when Plaintiffs point out OMC’s Australia division was selling them to the surf life saving market to protect people.
  • RingProp (propeller with a ring around its perimeter) – boating industry has claimed the potential for entrapment.
  • Australia Surf Life Saving guards with flattened or elliptical rods for reducing drag – industry clams the rods will cut you because anything that cuts though water will cut through people.
  • Guy Taylor’s 3PO Navigator Propeller Guard (an octagonal ring type guard with holes in the flat areas) – the industry claims the guard creates boat handling issues, the increased cross sectional area results in larger danger zone, impacts performance in reverse with the flap down shield they added later (speed), and it provides minimal protection from the rear without the shield.
  • Guy Taylor’s 3PO Navigator Propeller Guard with its optional swing up rear shield (hinged rear shield swings up when underway to reduce drag, swings down at rest or in reverse to protect people behind the boat) – in the Brochtrup Trial (decided in April 2010) the industry said ring guards create handling and steering problems, they create severe steering and trim effects, increase drag, can be crushed into the propeller and disable the drive. They industry said the best approach would be to educate boaters and especially boat operators. The jury disagreed and awarded Brochtrup $3.8 million.
  • MPT Thrustor – the industry claims they are not really on the market yet, create handling problems, and provide minimal protection in reverse.
  • Pendant / FOB / Tag type man overboard devices – MariTech’s Virtual Lifeline and CAST units, and Autotether’s device that can sound an alarm or stop a boat if someone is ejected while wearing a tag – the industry claims traditional lanyard kill switches are more reliable, automatic devices don’t kill the prop fast enough to protect you if you are struck before the boat begins to circle, and the systems are susceptible to being turned off (overridden).
  • MariTech PropStopper Swim Ladder Interlock & Swim Gate Interlock – industry says it is not rugged enough. Boaters would disable the feature to eliminate false positives.
  • MariTech Captains Mate – we have not yet seen this device for houseboats and larger vessels challenged by the industry.
  • Brunswick’s sensor based patents (infrared sensor to detect people in the water) – Brunswick says they could never get it to work. It was too difficult to reliably detect people in the water near the drive.

The industry also still claims the relevant “Other Defenses” they use against conventional propeller guards against these newer devices.

That reasonably wraps us what the industry has seen in court to date (except for some old OMC projects they have already defeated in court several times). The industry’s only problem in cases tried to a verdict has been Guy Taylor’s 3PO Navigator propeller guard with its optional swing up rear shield.

One of the industry’s defenses, no boat builders ever installed propeller guards, is taking some hits from our recent series of posts identifying many boat builders that have or do install propeller guards.

The same defense is also taking some hits from Mar y Sol Twin Hull Boats, a Costa Rican catamaran dealer now installing Autotether on all the boats it sells.

Another industry defense, propeller accidents are very rare, is taking some hits from our annual pages covering media reported propeller accidents, such as this 2012 Propeller Accidents page and our Propeller Accident Statistics page.

Yet one more industry defense, this specific accident scenario has never occurred before, has taken some hits from us listing several similar accidents as we did in the Laass case and in the McGarrigle case.

The boating industry settled four propeller cases this summer (2012) probably at least partially due to the changing landscape of new propeller safety products, new information coming to light, and anticipating problems with some of their existing defenses.

Emerging Propeller Safety Devices, Technologies, and Approaches

Several new propeller safety devices or products currently working their way to market may provide even greater challenges for the boating industry’s traditional defenses.

Again, before anyone with one of these firms responds telling me their device does not have the problems the industry claims they do, PLEASE NOTE – I am not saying they do. I am only saying the boating industry claims they do.

Among currently emerging propeller safety devices, technologies, and approaches are:

  • Mercury Marine’s Moving Propeller Alert System – it may be hard for the industry to explain why it took several decades to put a blinking light on the stern to indicate the propeller is spinning, and why that device is an option only available on a small percentage of new boats
  • Australian Environmental Safety Propeller (blunt edges blades said not to injure people and create a safety shroud at higher RPM). This device won a high profile national invention contest in Australia making it more difficult to challenge. The industry will claim the propeller did not perform well in the human factors testing at SUNY CRESE.
  • MagBlade MaxThrust & SlipStream Propellers (blunt edged blades said not to injure people and create a safety shroud at higher RPM while improving efficiency).
  • Contrapel Water Jet Technology said to combine the best of both worlds (water jets and propellers) without the negatives of either, while improving efficiency. Stabicraft, a well known New Zealand boat builder, and Volvo Penta engine technologies have played a role in its development making Contrapel more difficult for the industry to challenge.
  • RingProp Intellectual Property is currently for sale (September 2012). The industry primarily defeated this technology in court by letting it die off and claiming the props are no longer available. If a ringed propeller re-enters the market, it could become challenging again.
  • Skipper Guard Tracker can stop the boat when people fall overboard. It can also automatically call in the accident or other problems via SMS and include the vessel’s exact location.
  • Volvo Penta’s recently patented virtual propeller guard system. Brunswick has been saying this approach does not work, if it doesn’t work, why did Volvo Penta pay to have their patent issued in June 2012?
  • Most of our inventions have been placed in the public domain.
  • Use of trim cylinder trailout devices as a means of cushioning impacts with conventional propeller guards. See page 135 of our houseboat report.
  • The U.S. Coast Guard created a Public Service Announcement (PSA) inline with boating industry saying education is the best approach, and inline with the 1989 NBSC Propeller Guard Subcommittee Report which suggested propeller safety education and awareness campaigns “be as vivid as possible in depicting underwater impact accident scenarios”. However the boating industry banned the resulting PSA, Don’t Wreck Your Summer, because they said it showed boating in a bad light.

The industry will begin defending these new entries by:

  • Claiming they are not yet on the market
  • Claiming they have not been proven
  • Claiming they can create unintended consequences
  • Saying they were not available when the vessel or drive involved in the accident was built
  • Claiming their durability has not yet been proven

Plus they can still use the “Other Defenses” they use against conventional propeller guards.

But as time moves on, some of these devices (or other devices not yet released to the public) are going to provide some serious challenges to the boating industry’s traditional court defenses. More specifically, several of the new approaches have very minimal impact on performance or actually improve performance (top speed), have nothing in the water other than an open propeller, and avoid several of the industry’s previous objections.

The boating industry could try to suppress these new technologies and slow their development. Note – we are not saying the industry suppresses propeller safety technologies, we are only saying it is an option open to the industry that some claim they have taken in the past.

The boating industry continuing to claim that education is the best approach while simultaneously banning a U.S. Coast Guard Public Service Announcement that met the specific criteria outlined in the NBSAC Propeller Guard Subcommitte because it showed boating in bad light may be challenging for the industry to defend in court. The boating industry says we should not use propeller guards, we should use education, but the same boating industry banned propeller safety education that met its own criteria (the industry seems in love with the the 1989 NBSAC report and frequently quotes from it in boat propeller accident trials).

We suspect the industry will be litigation testing these new propeller safety devices in an attempt to identify some possible new defenses, but with some of them being their own devices that might get interesting.

Over the last decade (2002-2011), a minimum of 176 propeller accidents per year have been reported in the U.S. Coast Guard Boating Accident Report Database (BARD). With large awards in cases tried to verdict ($3.8 million in Brochtrup, and $30 million in Bell), if the industry starts loosing these cases (four cases settled this summer), the line of pending cases could grow pretty fast. To stave off the bloodletting (no pun intended), the boating industry is going to need some new legal defense tactics for the courtroom, especially in light of the propeller safety devices emerging at this time. I suspect we are not telling the major players anything they do not already know, although they may not be specifically aware of some of the emerging products. However, many of their investors are probably not be aware of this emerging threat.

In 2003, an interview with Joe Pomeroy, then Lead Counsel for Mercury Marine, published in Soundings Trade Only quoted Mr. Pomeroy as saying:

Joe Pomeroy, Lead Counsel for Mercury Marine

“Barring some kind of breakthrough in prop guard technology, plaintiffs face an uphill fight.”

It appears those breakthoughs may already be here or on the way. The boating industry may now be contemplating Joe Pomeroy’s quote while repeating the famous question asked of Shoeless Joe Jackson as he was leaving the courtroom, “Say it ain’t so, Joe.”

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