If your boat sinks or is left abandoned, you may be legally liable for any damage it causes. Here's how it works.
Your ships sinks on the mooring, choking the harbor. The sinking was because of a collision, no fault on your part. Have you violated the law? Title 33 United States Code section 409 says you have, just as it says the shipowner is under an immediate obligation "to immediately mark [the wreck] with a buoy or beacon during the day and a lighted lantern at night ." The law goes on to command the owner "to commence the immediate removal of the same, and to prosecute such removal diligently." Strong words!
Further, if you fail to mark the wreck and another ship runs up on it, you're on the hook. If you tarry in the removal and the government steps in, you will pay a fine and the government will seek reimbursement from the owner. This is a strict liability law – you are liable even if the sinking couldn’t have been avoided.
The good news is that a protection and indemnity insurance policy covers wreck removal. If you take away nothing else from this article, let it be that the P and I policy must not be cancelled too soon after a sinking.
Despite the law and despite insurance, every year boats sink at anchor or on the mooring and create a big headache. A lot of these boats are derelicts. Years ago an old eastern rig dragger, whose value lay only in her groundfish permits, sank on the mooring off Fish Point in Portland harbor. The owner had no insurance and not enough money. The community rallied, a bit reluctantly as I recall, and a local marine construction company raised the wreck, in chunks. Ever since, the Portland harbormaster has required proof of insurance for boats wishing to moor in Portland.
Another tale has a sadder end. A big wooden fishing boat, again derelict, got thrown out of a midcoast harbor and anchored in some out of the way inlet. The owner left the boat, no shipkeeper. I got a call from a panicked waterfront homeowner who told me the ship was slowly going down and he was convinced she would soon sink. I tried to rally the state and the Coast Guard to action, but a day or two later it was too late. The quote for wreck removal was a quarter of a million dollars and as far as I know the wreck is still there, crowding the little cove and an eyesore at most tides.
Harbormasters keep an eye out for the near-derelict visiting vessel, spouting water from her automatic bilge pumps until the batteries fade, settling a bit each day, no owner in sight. Title 12 Maine Revised Statutes section 1866 defines "Abandoned Watercraft" as "any watercraft that is inoperative and neglected, submerged or partially submerged or that has been left by the owner in coastal waters without intention of removal." The determination that a vessel is abandoned is up to the town, and the statute’s language suggests no court would second guess the determination. Title 38 MRS §9 makes it a misdemeanor crime to abandon a watercraft in Maine waters, or to "bring into or maintain in the harbor any derelict watercraft, watercraft for salvage, or abandon any watercraft in the harbor" without a permit from the harbor master or appropriate municipal official. The statutes give the town the right to dispose of the derelict. So there's good law on then books.
That’s the happy news. The reality is that while it is a crime to abandon a boat, or to let one become derelict, it still happens, especially in hard economic times. That begs the question: apart from bringing a criminal complaint against the owner - if he or she can be found - what remedies exist for the town and other waterfront interests? Put another way, how does the town get rid of the wreck?
The answer is unsatisfactory. Some years ago the state did create a program to fund the removal of abandoned vessels (Title 12 MRS section 1866), but, not much surprise here, it has never really been funded. The program is administered by the Bureau of Parks and Lands, Maine Department of Conservation. Per Title 12 MRS section 1651, funding to removal vessels was to come from the Shore and Harbor Fund, which is in turn funded in part by the Submerged Lands Fund. The Submerged Land Fund takes in lease payments made to the state by wharf owners and others for the use of the submerged land on which their piers, boathouses and floating restaurants etc. operate – it’s a substantial amount of money each year, so there ought to be ample cash to fund wreck removal.
But somewhere along the line the fact that the legislature specifically authorized use of the monies for wreck removal got overlooked. If a town wants money to remove a wreck the town can and certainly should apply for Shore and Harbor Fund money, and the Submerged Lands people will be on the committee that considers the request. (Dan Pritchard, Bureau of Conservation, is the director: 287-4922.) But the most that gets awarded is a few thousand dollars, maybe, plus some permitting assistance. Not nothing, but little enough when one considers the quarter of a million dollars quoted to dispose of that sunk dragger.
And that’s why harbormasters watch out for derelicts.
Nicholas Walsh is an attorney specializing in maritime law and waterfront matters. He can be reached at 207-772-2191, or [email protected].