Posted: July 18, 2012 | By: David Weil, Esq.
The short answer to our reader’s question is that he should complain to the harbor patrol or port police. If he complains long and hard enough, they will either start enforcing the no-wake regulations or they will talk to the hotel owners. I’m sure the hotel isn’t interested in negative publicity, so they will presumably talk to the boat rental vendor, which should be pretty effective.
Our reader is looking for a private remedy or a private cause of action that will allow him to solve the problem without waiting for the authorities. The problem with that approach is that he has no legal claim until something he owns has actually been damaged. And, he will need to prove that the hypothetical damage was caused by a rental boat or PWC wake. Not an easy task.
All boats -- even PWCs -- are responsible for their own wakes, and the owner of property damaged by a wake does have a legal claim against the operator of the boat. If the owner and operator are not the same person, the owner of the damaged property may have a claim against both the vessel’s owner and the operator. And if the rental operation is promoted as a benefit for hotel guests (as seems to be the case here), the legal claims may also extend to that hotel owner. But the extension of liability beyond the operator of the vessel will depend on a long list of different factors, including the nature of the rental agreement and the required qualifications of the renters.
Assuming we know the identity of the owner and operator of the offending vessel, we would also need to prove that the damage was caused by the wake, and therefore was not existing damage caused by something else.
Our reader is a little vague on whether he is concerned about damage to his own boat or to the marina itself. If our reader is concerned about damage to his own boat, he may be able to refer to a recent marine survey to establish the pre-incident condition of the boat, or to recent photos -- if the date of the photos can be proved.
Damage to the docks and other facilities of the marina seems a little unlikely, if the source of the offending wake is a small rental boat. However, if that is his concern, proving the pre-incident condition of the marina will be a lot more complicated than simply referring to a survey report. The best approach in that case would probably be to work with the marina’s insurance company and follow its instructions regarding the periodic inspection and maintenance requirements of the insurance policy.
Failure to document or establish the pre-incident condition of the boat or marina does not preclude a claim for damage, but the damage caused by the offending wake would, nonetheless, need to be established somehow. Eyewitness testimony, for example, could be used, if a witness actually saw the impact or other cause of the damage.
The bottom line for our reader is that he has no private right to enforce a regulatory ordinance, such as speed limit in a no-wake zone. Enforcement can only be performed by a sworn peace officer. The legal claims of a private party in a case like this arise only after something is damaged.