NY court rejects inspector liability in capsizing

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Associated Press

Posted on November 29, 2012 at 2:03 PM

Updated Thursday, Nov 29 at 2:04 PM

ALBANY, N.Y. (AP) — New York's top court on Thursday rejected damages claims against state inspectors who continually recertified a tour boat for 48-passenger capacity before it overturned on an Adirondack lake in 2005, drowning 20 people on a fall foliage tour.

The Court of Appeals unanimously ruled that the state generally isn't liable for "the negligent performance" of government functions unless it has some "special duty" to those hurt.

Federal investigators afterward said the 40-foot Ethan Allen should have been limited to 14 passengers. The boat tipped over in clear, sunny weather, sending 47 tourists and the captain into Lake George. The National Transportation Safety Board concluded that "insufficient stability," partly from the passenger load, was the probable cause of the accident.

Nineteen of those killed were from Michigan. One was from Ohio.

"Although the law is clear, the upshot is that, regardless of any negligence on the part of the state, the victims of this disastrous wreck are essentially left without adequate remedy," Chief Judge Jonathan Lippman wrote for the unanimous court. "The Legislature currently has a proposal before it to require public vessels to carry marine protection and indemnity insurance. We note that such a requirement — had it existed — might have been able to provide a modicum of relief here."

The six judges noted that the Legislature, even in amending state Navigation Law after the disaster to impose more safety standards, didn't establish a private right to sue the government.

They reversed a midlevel court and upheld the state's claim of sovereign immunity in carrying out these governmental functions.

"The statutory scheme at issue here does require inspectors to issue a certificate of inspection indicating that the vessel is safe and, specifically, certifying the number of passengers the vessel can safety transport," Lippman wrote. "However, these statutory obligations do not create a special duty of care owed by the state to particular passengers."

The top court noted that state inspectors had annually carried forward the passenger capacity of 48 from 1979 to 2005, despite a major modification in 1989 to replace a canvas canopy with wood. They didn't conduct stability tests. Capacity was initially set by the Coast Guard after the boat was built in

Since the disaster, the state has increased the average weight per passenger used to determine capacity from 140 pounds to 174 pounds, reflecting Americans' upward trend.

Ethan Allen owner James Quirk settled federal court claims in 2008 against his company Shoreline Cruises Inc., its affiliate Quirk's Marine Rentals and boat captain Richard Paris for undisclosed terms. Shoreline continues to operate its other tour boats on Lake George in the southeastern Adirondacks.

According to plaintiffs' attorney James Hacker, that lawsuit suggested operator negligence, turning into the wake from another boat.

The state Office of Parks, Recreation and Historic Preservation, responsible for inspecting commercial boats on state waterways, declined to comment Thursday.

"I think this suit makes it abundantly clear that anyone who's hurt as a result of a negligent act by New York state, their rights are severely hampered," Hacker said. "This is the end of the road for this case."

National Transportation Safety Board investigators, who raised the submerged tour boat and tested it, concluded in 2006 that the Ethan Allen's capacity should have been slashed to a maximum of 14 people after the heavy wooden canopy was added in 1989, but no stability test was done after that. Extra weight made the boat suddenly flip, most likely after it was struck by a wave from a passing boat or boats on Lake George, they said.

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