Liability and the Duck Boat Calamity
Duck boats have become popular for visitor tours, possibly because they are quirky and versatile. As amphibious vessels, they can travel both on water and on land because they have tires. But near Branson, Missouri, a duck boat sank on July 19, 2018, during a thunderstorm. The Table Rock Lake tragedy killed 17 people, including nine from one family alone; only one female family member survived.
The vessels have a checkered past when it comes to safety. Nearly 40 people have died in duck boat accidents in the last 20 years. A partial list includes:
- May, 1999: On Lake Hamilton near Hot Springs, Arkansas, 13 people died when a duck boat sank.
- July, 2010: On the Delaware River in Philadelphia, two young people died when a barge hit the disabled duck boat they were on.
- September, 2015: In Seattle, five students died when a duck boat collided with a bus.
- April, 2016: A woman died when a duck boat ran over her on the street in Boston.
A Military Pedigree
DUKW (duck) boats were often utilized during World War II and the Korean War to move troops and supplies. Their ability to move from sea to land and back again made them valuable. While the boats were not intended for long-term use, some of them made their way into the tourist trade decades ago.
Many Safety Questions
The Branson duck boat was a DUKW boat that was actually used during World War II, which raises safety concerns in and of itself, despite the fact that the vessel was refurbished. The owner of the boat, Ride the Duck Branson (a division of Ripley Entertainment) first claimed on their web site that it was not a vintage duck boat, but one built especially for their purposes. The age of the boat raises the first safety question.
Some persons have criticized the unusual shape of all duck boats because of the numerous blind spots it creates. Still others have cited the lack of consistent jurisdiction. The U.S. Coast Guard has only restricted oversight and authority when the boats are on the water. On land, the vessels are under state control.
Finally, recommendations made by the National Transportation Safety Board (NTSB) after the 1999 catastrophe have largely been ignored. The NTSB endorsed a number of duck boat modifications, including getting rid of canopies, which make it hard to escape when underwater, and making the boats harder to sink by adding what’s known as “backup buoyancy.” The fact that duck boats are still more or less the same as they were in 1999 means that 17 people in Missouri might have died needlessly.
Where Were the Life Jackets?
One would think that people, especially children, would be required to wear life jackets on such a vessel. However, neither federal law nor Missouri law mandated life jackets because the boat was commercial. While the Coast Guard does require life jackets to be carried aboard duck boats, passengers do not have to wear the jackets—again, because the boats are commercial.
Where’s the Legal Responsibility?
Because of the split jurisdiction between state law, federal law, and U.S. Coast Guard regulations, determining who is responsible for negligent behavior becomes difficult. While the U.S. Code of Federal Regulations mandates that the person in charge on a boat must order all passengers to don life jackets when “possible hazardous conditions exist,” it was not done in this situation. Therefore, it looks as if federal regulations were disregarded.
But one of the problems in this case is that regulations do not wield the same force in court as laws, and this fact impacts determining both negligence and liability.
Yet another factor comes into play: a 167-year-old federal statute named the Shipowner’s Limitation of Liability Act. Since 1851, it has been used to cap legal damages to the salvage value of the sunken boat. The Act, initially passed to help the United States’ struggling commercial fleet, was used when the Titanic sank and, more recently, with the Deepwater Horizon oil catastrophe in 2010. A sunken duck boat has been characterized as worthless. One that hasn’t sunk is still worth only about $100,000.
On July 29, a lawsuit was filed in U.S. District Court in Kansas City on behalf of two of the nine members of the Indiana family. The suit seeks $100 million in damages from Ripley Entertainment Inc., Ride the Ducks International, Ride the Ducks of Branson, the Herschend Family Entertainment Corp., and Amphibious Vehicle Manufacturing. The case was brought on grounds of negligence, strict product liability, outrageous conduct, wrongful death, negligent infliction of emotional distress, and violation of the Missouri law relating to truth in merchandising.
When something goes wrong, we are left to wonder.
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