Who is responsible for damage caused by boat wakes?

Q: I own a waterfront home on the Sacramento River, and my boat and my boathouse and dock have been damaged several times this year by the wakes from passing boats. The boats on the river often pass us at extremely high speeds and their wakes can be very substantial. I am not sure if the river has a speed limit but regardless, it seems to me that these boats should be liable for the damage that they cause. What are my legal options in a case like this?

A: Before addressing our reader’s question about his legal options, I will first note that his section of the river may be restricted by a speed limit for passing boats. But it may not be restricted, depending on where it is.

Certain sections of any navigable waterway may be governed by a speed limit established by the local community, and those speed limits must be prominently posted on a sign or buoy. Speed limits on California waterways are also established by state law, most notably California Harbors and Navigation Code section 655.2, which sets a 5 mile-per-hour speed limit within certain areas. In this case, our reader may find some relief under section 655.2(2) which restricts the speed of a passing boat to five miles per hour when it is within 200 feet of a dock with boats secured to it.

Unfortunately for our reader, the enforcement of a speed limit on the water is similar to a speed limit ashore. You are only cited if you are caught speeding. So, the short answer to our reader’s question is he should complain to local law enforcement. If he complains long and hard enough they may start enforcing the regulations. Not very helpful, I know. 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.

All boats – even jet skis – 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 is not the same person, the owner of the damaged property may have a claim against both the vessel’s owner and the operator.

Assuming our reader is able to determine the identity of the owner and operator of the offending vessel, he will also need to prove that the damage was caused by the wake and therefore not existing damage caused by something else. Failure to document or establish the pre-incident condition of the boat or dock does not preclude a claim for damage, but the damage caused by the offending wake will nonetheless need to be established somehow. Eyewitness testimony, for example, could be used if the witness actually saw the impact or other cause of the damage. Or a recent pre-incident survey or inspection may be used to establish a baseline condition of the boat or dock.

The bottom line for our reader is that he has no private right to enforce a regulatory ordinance such as speed limit. Enforcement can only be performed by a sworn peace officer. But in general – yes – vessels are responsible for their wakes and damaged caused by their wake, even where there are no regulations or restrictions concerning vessel speed limits. As such, our reader probably does have a civil claim against the owners and operators of the boats that are causing the damage, but every case is different, and we can’t offer a specific response without knowing a lot more about the case.

David Weil is licensed to practice law in the state of California and as such, some of the information provided in this column may not be applicable in a jurisdiction outside of California. Please note also that no two legal situations are alike, and it is impossible to provide accurate legal advice without knowing all the facts of a particular situation. Therefore, the information provided in this column should not be regarded as individual legal advice, and readers should not act upon this information without seeking the opinion of an attorney in their home state.

David Weil is the managing attorney at Weil & Associates (weilmaritime.com) in Long Beach. He is an adjunct professor of Admiralty Law at Loyola University Law School, a member of the Maritime Law Association of the United States and is former legal counsel to the California Yacht Brokers Association. If you have a maritime law question for Weil, he can be contacted at 562-438-8149 or at dweil@weilmaritime.com.

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