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Napolitano_MichaelIn 2005, 20 passengers were killed and several others injured when the Ethan Allen, a public vessel operating as a tour boat, capsized and sank on Lake George.  As a public vessel, the boat was subject to yearly inspections by the State, at which the State would issue a certificate indicating, among other things, the vessel’s maximum capacity.  At the time the vessel sank, it had been carrying 47 passengers and 1 crew member within the 48 passenger maximum as set forth in the certificate.

During the litigation, State inspectors testified that they did not independently verify the vessel’s passenger capacity by conducting a stability test, but rather relied on the number certified in the previous year.  Basically, the State inspectors routinely rubber stamped the number that the U.S. Coast Guard originally certified when the vessel was initially inspected and certified in 1964.  The State took over the inspections in 1979.

The 48 passenger limit certified by the State inspectors was much higher than the level at which the vessel could be operated safely.  Interestingly, since this accident, the State has increased the average weight per passenger from 140 pounds (an approximation used by the Coast Guard during the original certification) to 174 pounds.

Passengers who were injured and representatives of the estates of those killed filed suit against the State alleging that it had been negligent in certifying an unsafe passenger capacity, resulting from the use of outdated passenger weight criteria.  The State raised the defense of governmental immunity.

In a surprising outcome, the Appellate Division, Third Department found that the State failed to demonstrate that its inspectors exercised any discretion when it rubber stamped the certification and held that the governmental immunity defense did not apply.

Unfortunately, on November 29, 2012, the Court of Appeals reversed and found that since there was no special duty owed by the State to the Claimants, the State cannot be liable even though it may have exercised its discretion negligently and the Claimants cannot overcome the State’s argument that it is protected from liability by governmental immunity.  The Court also held that since the Navigation Law does not provide for governmental tort liability and does not provide a private right of action, allowing such a suit against the State would be contrary to the legislative intent.

The Court notes that the accident was “tragic” and “disastrous” but that its decision leaves the Claimants without an adequate remedy.

Pending before the New York State Legislature is a bill, 2011 NY Assembly Bill A6699, which requires public vessels to carry marine protection and indemnity insurance.  Passage of this bill may have provided the Claimants in this case with an avenue for recovery.  The Legislature should pass 2011 NY Assembly Bill A6699 to ensure that if a tragedy such as the Ethan Allen’s sinking ever occurs again, victims will be able to recover and be made as whole as possible, the ultimate goal of tort law.