We have looked at this question from several different perspectives in previous installments of this column. For example, we noted that all mariners have a legal duty to render assistance to “any individual found at sea in danger of being lost” (“Ask a Maritime Attorney — Rescue Requirements Spelled Out,” The Log, Feb. 8, 2007). In the scenario described above, our reader would have no recourse under this doctrine, since he was not in danger of being lost at sea.
We have also noted that the Coast Guard will render assistance when grave or imminent danger threatens a vessel or a person (“Ask a Maritime Attorney — Does the Coast Guard Charge for Rescues or Assistance?” The Log, Jan. 8). This is a sound policy, but it does not help our reader, since it is a Coast Guard policy that is not binding upon a local Harbor Department. Regardless, this policy would not help our reader since the scenario described above did not involve this type of grave threat.
Most public agencies perform their duties under some form of immunity, without any mandate that would provide for sanctions for a failure to perform those duties. In the absence of a statute or legal doctrine that expressly requires a public agency to act, the tasks that are performed by most agencies will be characterized as “discretionary duties.”
A public agency may decline to perform a discretionary duty with little or no consequence. However, if they do choose to perform that duty, they may be liable under certain circumstances for negligence associated with that performance.
The scenario described by the reader may fall into a gray area as a discretionary duty, since the Harbor Department contacted the boat owner to advise him of the problem. A court could, theoretically, find that the department’s decision to contact the boat owner amounted to a decision to take care of the boat. However, the department expressly advised the boat owner that they were too busy to secure the boat. A court, under those circumstances, would probably find that the department had contacted the owner as a courtesy, but had otherwise declined to take on the project, and the department would therefore not be liable.
The obligation to care for a boat falls squarely on the owner’s shoulders, and it is generally found to be a “non-delegable duty.” When damage occurs with nobody aboard, the owner must usually bear responsibility for that damage. Only an extraordinary circumstance will give rise to an exception to that rule, but an attorney experienced in maritime property damage should be consulted.