What’s the Owner’s Liability, If His Rotting Private Dock Floats Away?

I am a waterfront property owner with a pier and fixed dock platform located in Northern California. The adjacent property owner has allowed his fixed pier and floating concrete dock to go into disrepair following damage to the pier after a storm several years ago. A year ago, the neighbors approached the owner about our concern that the floating dock pilings were severely worn and had the potential to break away. We are concerned about damage that the free-floating concrete dock will do to the neighboring docks and boats, not to mention a boat under way in the storm. What is the owner’s liability for damages should this dock float free of its mooring pilings in a rising tide caused by a storm surge?
We should first note that this is not a maritime law issue — at least not at this time.

The central focus to every maritime law question is the involvement of a vessel. Federal law defines a “vessel” to include “every description of watercraft or other artificial contrivance used, or capable of being used, as a means of transportation on water.” (See 46 U.S. Code §§ 115 and 1 U.S. Code §§ 3).

A dock — even a floating dock — is securely fastened to dry land, and as such it is not capable of being used for transportation. Even if a dock breaks free from the pilings, the act which led to the incident would have occurred when the dock was still secured to the pilings, and as such it would be characterized as debris rather than as a vessel.

With that said, we can offer some broad general observations that will apply under both maritime and land-based legal systems.

All of us owe a duty to those around us to act reasonably to avoid harming them. We are “negligent” when we breach that duty to act reasonably, and we can be held liable for the harm caused by our negligence. In the case of our reader, the neighbor’s installation of the dock must be reasonable under the circumstances. For a construction project such as this, the definition of a  “reasonable” installation would look to building codes, local custom and practice, and past experience of local craftsmen. Proof of “reasonable behavior” often requires the testimony of an expert witness.
If some aspect of the installation failed to comply with “reasonable” practices, and if that failure leads to an event that harms our reader or his property, he may be able to file a lawsuit against his neighbor to recover those damages.

Unfortunately, even if the installation failed to comply with local custom and practice, it would be very difficult to force the neighbor to correct his mistake if he complied with local ordinances and building codes. Our reader’s best bet is to seek the advice of a local attorney, who will be better able to assist after reviewing all of the relevant facts.

Gulf Oil Spill: A Clarification

In the last “Ask a Maritime Attorney” column, we covered the various impacts the Gulf of Mexico oil disaster will have on pleasureboats if certain federal laws are amended. We noted, for example, that foreign-built vessels working in offshore cleanup activities are not subject to the Jones Act, because they are not participating in coastwise trade. A number of astute readers have questioned whether this observation is accurate — and, in fact, they have raised a good point.

Among its various provisions, the Jones Act prohibits foreign-built and foreign-registered vessels from participating in coastwise trade in the United States. Coastwise trade is generally the transportation of merchandise between U.S. ports. The explosion of the Deepwater Horizon rig occurred 50 miles offshore, and as such the skimming and transportation of oil from that site is not within the definition of “coastwise trade.”

However, in 2008, Congress passed a very small amendment to the Jones Act that I had overlooked. Specifically, 46 U.S. Code sec. 55110 was amended to prohibit foreign-built and foreign-registered vessels from transporting “valueless” material from or to points within the U.S. Exclusive Economic Zone. The “EEZ” extends 200 nautical miles out from our shores (therefore including the Deepwater Horizon site), and it is the zone in which we claim the exclusive right to harvest fish, oil, minerals and other natural resources. A U.S. vessel such as the Deepwater Horizon rig must be used to harvest oil within the EEZ, but the oil skimmed from the surface is not a harvested resource: It is simply debris retrieved from the water.

So, as a consequence of that 2008 amendment, U.S.-built and registered vessels must be used for the cleanup efforts, even though they are not participating in “coastwise trade.” Many thanks to our readers for keeping us honest!

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