Monday, June 20, 2011

What's to be done? Revisiting the Lake George case.

Excuse me while I take a moment to get serious here, but I've been having an email discussion with a friend who can be a bit of a gadfly & as gadflies sometimes do, he's gotten me thinking and I would just like to mull over some of those thoughts here.

I think that a lot of people who read this blog remember the case I'm talking about - there were a couple of weeks where it seemed like that was the only thing that was being discussed on Facebook & the boating blogs, but for anyone who missed it, here was the story (and I'm going to try to keep it very simple, I'll add my own opinions after the basic description):

A little over a year ago, there was a collision between a motorboat and a kayaker on Lake George. The kayaker died. The motorboat driver was initially charged with reckless operation, a misdemeanor, but after hearing much testimony, the grand jury chose to indict on a lesser charge of failing to yield the right of way (using the "rules of the road" as defined in NYS Navigation Law).

The case was sent to court on that basis and last April, the local kayak community was set electronically a-roar when the judge ruled that the motorboat driver was innocent of all charges because kayaks are not considered vessels under NYS navigation laws.

Of course the area papers were all over it very quickly - and giving about as much background information as I just did. For a kayaker who first became acquainted with the story at that time (as I did when a friend posted it on my Facebook wall), it was the easiest thing in the world to fill in those blank outlines with our worst fears and prejudices - some knucklehead yay-hoo at the wheel, defended by some shyster lawyer and some half-asleep judge who didn't care enough to see justice done...

Except that it really wasn't like that at all. The first blow to my instant ugly picture came because the first thing I tend to do when I see a story involving a certain interpretation of a set of rules is to go look at the rules. I'm no lawyer but back in the testing days, I did pretty well in tests of reading comprehension and I still trust myself to read things correctly as long as I take the time to sit down and read them carefully. NYS navigation law is a pretty long document but there's a nice clear table of contents & if you follow it it actually ends up being very easy to find the exact bit that -- yes -- completely excludes canoes and rowboats from the Navigation Rules! I couldn't believe what I was seeing because I went looking with the assumption that we are SO covered - but there it was, right on what would've been the first page if I'd been looking at a hard copy!

Article 1, § 2, line 6-(c) "Pleasure vessel" shall mean and include every vessel not within the classification of public vessel or residential vessel. However, the provisions of this chapter shall not apply to rowboats and canoes except as otherwise expressly provided.

With that in mind, I then headed on down to Article 4, § 41, Pilot rules, where sure enough, there was no express provision extending any role whatsoever to paddlers & rowers in the right-of-way hierarchy. There are other provisions which mean that the judge's decision certainly isn't the declaration of open season on us teenyboaters, but...yes, we just don't count in the NYS version of the rules of the road.

Bizarre, but true, and a real eye-opener - but I still didn't have any real picture of what had happened until I took that info into a discussion that was going on on another friend's wall and involved a number of real-world friends. It was in that discussion where I finally got a better picture of what might had happened - someone who actually lived in the Lake George area basically came in & started talking about not the yay-hoo I think we were all picturing, but a responsible boater who was absolutely distraught after hitting a paddler on a windy, choppy day of the exact sort when most of us kayakers know we are very hard to see.

It was at that point that I went & found earlier versions of the story that were reported in a much less sensationalist style - like this one in the Albany Times-Union, which described a perfect setup for an accident, a terrible one but an accident - novice kayakers, carrying but not wearing lifejackets, paddling out onto a placid-seeming lake & then being caught out too far as the weather suddenly turned nasty on them. Detail that really got me - as soon as he realized he'd actually hit a paddler, the motorboat driver (who had 55 years of experience & a perfectly clean record) jumped overboard to help look for the victim, and stayed in so long that he himself had to be treated for hypothermia.

That is not the act of a person who doesn't care, and I think it was when I was reading that that I decided that I didn't want to jump on the bandwagon and do a blog post about it. I just didn't see what I could say

So why on earth am I doing one now?

Well - because my friend Chuck was asking what I was doing, and I got to wondering if there was anything that was worth doing, and I started thinking that if there was a silver lining in this tragic case, it was that this bizarre loophole has been brought to wide public attention.

And the last article I saw about the case was perhaps the one that was the most interesting, and that's the one I thought I might bring back to people's attention. The fascinating coda of the case?

"Both the prosecutor and defense lawyer in a case against a man whose motorboat killed a kayaker say the case demonstrates the need for changes in navigation law to protect paddlers."

Full article here.

I don't know if there's anything we paddlers and rowers can do to express support or urge action. I still think the 2 best navigation rules for paddlers are informal ones that will never appear in a law book - the Law of Gross Tonnage (the bigger boat is always gonna win in a contact situation) and the Law of Assumed Invisibility (do everything practical that you can to be seen, and then assume that nobody does anyways)-- but it does seem like with human-powered vessels being SO much more common now than they were when the Navigation Rules were written, this business of the pilot rules excluding them seems like something that should be revisited and (hopefully) revised.

Anyone have any thoughts, or any more recent information? I'd be genuinely interested in reading it - mid-April seems so long ago and once the initial flurry of shock at the ruling was over, it seems like the whole thing faded fast.

It would be a shame if the loss of public interest meant that the opportunity that was opened up by the case ended up closing without anything happening - I'm hoping that things are still moving in the right direction even without the attention of the social network (sometimes they do).

If a weird rule falls in the forest, and nobody blogs about it, does it make a noise?

Lunch hour note, following day: Well, there have been some very good thoughts & suggestions in the comments - totally worth a read. I have already somewhat acted on Buck's suggestion that paddlers who would like to be included in the pilot rules (even if it's at the bottom of the right-of-way hierarchy, as we might well end up being) should contact their assemblymen & senators - I will do that too, but first, I sent a comment to the office of the Saratoga County D.A., who is the one who was saying that he was considering lobbying to have the law changed. That seemed like a good place to start. My comment was pretty short - I just asked if he was still pursuing that & that as a NYS kayaker, I support revising the rules. If I hear anything back about where that is, I'll post it here. If anyone else wants to do the same, click here to go to D.A. Murphy's comment form. It only takes a moment. Thanks!


ol philosophizer said...


As a retired lawyer, I would like to complement you on your excellent analysis of a situation where the application of existing law to an emotional fact-pattern can lead to a visceral reaction from a dissatisfied public. The proliferation of paddle craft in navigable waters over the last few decades would seem to justify the legislature's revisiting and revising current law by looking at not only the things that can be done to protect the paddler, but also what requirements should be placed on the paddler to help protect herself (as an analogy,think of the seatbelt law and motorcycle helmet law, as well as the recently enacted cold-water pfd law; I also have friends who make themselves more visible by attaching mylar balloons to their bow and stern before crossing Lake George, though I think that this type of self-protective action would go well beyond anything the legislature should require).

I will happily forward the link to this post to kayakers I know so that, at the very least, it will generate individual awareness of an issue of real importance to the paddling community. I am also tempted to suggest that it's not too late for a career change, that the law may be beckoning you, but to be perfectly frank, I am of the opinion that there are already too many of us out there.


Tillerman said...

Excellent point of view ol. Just declaring the kayak a vessel or changing the right-of-way law would not prevent another accident like this. It seems like the motor boater was proceeding quite slowly in open water and struck a kayak that was probably hardly visible in the prevailing conditions. If the driver had been drunk or driving recklessly he surely could have been and would have been charged with something more serious.

Time to step back and ask what practical steps could have prevented the accident (and/or saved the man's life) and what changes to the law should be made to encourage the use of those measures.

By the way ol, do you have a brother called oh?

ol philosophizer said...


I do have a brother, but oh no, no "Oh."

Maybe if we all forward the link to this post to everyone we know who may be interested in this issue, a groundswell of opinion will lead to the Frogma-fication of the Laws of Navigation.

bonnie said...

Thanks, both. Hm - Ol' P and Oh Docker - separated at birth (or at least career)? Quite possible!

Ol' P, thank you so much for the retired lawyer point of view - I sometimes hesitate to do posts like this because I feel like I am just clever enough to make a complete eejit of myself!

In this case especially, it's good to bring up the self-protective side of things. I think this case, more than anything else I've read, has made me start re-thinking my point of view about lifejackets. As I've pointed out in the past, I like having the choice because there have been occasions when I have opted to just carry the pfd (there's is actually a picture of me & my mom & dad ALL paddling with no lifejackets hidden away in the archives - search "lolcanoe" if you missed it) but those involved waterways that are so small and/or placid that I don't anyone would be around enforcing if they even happen to apply there.

Seeing a case like this, you just can't help thinking "If he'd only been wearing his PFD".

The mylar balloons are an interesting idea. Bicycle flags get talked about a lot down here - not great for rolling but you see them on the sitatops that the kayak fisherfolk use & there they seem like a good idea.

Justin Reynolds said...

if you listen to radio chatter in ny harbor, you will occasionally hear someone refer to "floating coffins". that's a reference to people in kayaks.

i used to volunteer on schooner pioneer & lettie g howard, both in the neighborhood of 125', relatively slow moving, with decks close to the surface of the water. on bow watch (where that's your only job), it's still relatively difficult to pick out a kayak. they hide below waves, and are basically invisible. lobster pots are easier to see, because they're brightly colored and have a big waving flag.

bicycle flags would help. mylar anything makes me wary, because it doesn't decay in the environment, and you will invariably lose it at some point.

i'm not sure when the coast guard regs were written, but if we take a trip back in time to, say, the 1890s in new york harbor, i'll guarantee there were more human powered craft on the water than there are today. how did they handle traffic in those days? i assume you didn't have people zooming around at 40 knots on a powerboat, but there was still a non-trivial amount of traffic. a 100 ton schooner moving at 8 knots isn't going to give up the right of way to a row boat, and it'll do just as much (if not more) damage.

bonnie said...

I used to work on the schooner Adirondack myself, and I know from personal experience exactly how hard it is to always see everything you need to see.

I suspect that the people who were out in the harbor in the 1890's were much more experienced than a many of the people who are getting out there in kayaks. I'd commented on a post Pandabonium did recently about an averted kayak tragedy in Japan (averted because the paddlers were lucky enough to be spotted after being blown off-shore) that the ease of use is both the best and the worst thing about kayaks - they can get an inexperienced boater out far enough to get into trouble that they don't even know is out there.

In the 1890's, a lot of the people plying the harbor in small craft would've been using them for work or daily transportation & would be a lot more aware of their surroundings.

But let's also not forget that in the 1890's & even early 1900's , there wasn't anywhere as much value placed on an individual life as there is now. Ever read Mark Twain? He talks about steamboats running over rafts - it sounds like it was pretty common & the steamboats didn't necessarily stop to see who they'd killed. Very different attitude.

Buck said...

Bonnie, I haven't heard anything more about the case. I don't think Snyder's wife filed an appeal.

As far as getting the law changed, call your Assemblyman's local office. Propose striking out the exceptions to canoes and rowboats. Then have all your friends do the same. Mount a Facebook campaign, to get all kayakers in New York involved. I'd try the Assembly first; the Senate is a mess. But thinking about it, why not try your Senator too?

I can guess that the reason for the exception is that commercial vessels can't possibly see such small craft on the water and thus will never be able to avoid them, but the opposite is very true - it's easier for a kayaker to see a bigger vessel and stand clear. That's my guess. Be prepared for that objection to arise, and emphasize that you are looking to have kayaks treated with parity, not given special dispensation. Once you get that far, be prepared for the law to put kayaks and canoes at the bottom of the right-of-way rules.

One way around the current legislative loophole is to mount a very small sail and see if you can't get classified as a sailboat - one with right-of-way privileges.

The process of getting laws amended seems like something only high powered lobbyists can undertake, but it's intended that ordinary people like you and me can get the ball rolling by calling our representatives. I can't urge you enough to take an active part in how we are governed.

This was a sad but excellent post.

bonnie said...

Thanks, Buck. That's just the kind of practical advice I was hoping the post would elicit. I wasn't sure where to start!

At the safe boating certification course I took recently, we got to discussing where in the hierarchy kayaks would fall if kayaks were included (and at that point I think I was still digesting the fact that the exclusion cause were there). We all agreed that kayaks would need to give way to large commercial vessels, because they are restricted to channels & have limited manueverability. There was less agreement on sailboat/kayak interactions - my opinion was that the kayak should give way because the sailboat can't slow down & would be forced to tack or jibe, and it's much easier for the kayak to slow down, scramble, or turn to get out of the way.

Motorboats...that's a tough one. Personally, if there's ANY question, I will always give way & take a motorboat's stern - because I don't know if they can see me and if they hit me, I'm coming out of it the worst. But I still feel like these are very manueverable craft & if they do end up coming up on a kayak, they should be the ones that do the avoiding.

Whatever the case, it would be better and cut down on confusion if it was just spelled out. I'm always impressed watching sailboat races, especially the way starts work - you do get some crashes but mostly, with everybody following the same rules, it's quite spectacular how so many boats can be milling traveling in so many different directions with the strongest word hurled across the waters being,


O Docker said...

I'm not a lawyer and I don't play one online, but if you're asking for opinions, I've got one.

And that's that most bodies of law or rules controlling traffic - in the air, on the ground, or on the water - contain provisions for preventing collision that supercede the right-of-way rules.

On the highway, most codes have a 'too fast for conditions' rule that basically says your ultimate responsibilty as a driver is to know when you're going too fast, no matter what the speed limit is.

In sailing, no matter who has the right of way, it's everyone's responsibility to avoid collision.

If the powerboat driver didn't see the paddler, then, to me at least, he was going too fast or not maintaining a proper lookout. If the applicable codes in this case didn't place at least part of the responsibility to avoid collision on him then I think they should be changed to do so.

The commenter rests, your honor.

Vlad Brezina said...

If one wants to extrapolate from Lake George to other waters of New York State, it's worth pointing out that there are overlapping jurisdictions and sets of rules. In New York State (and other states), there would seem to be at least four sets of laws that govern different bodies of water: COLREGS International Rules, COLREGS Inland Rules, the NYS Boating Laws that were at issue here, and various local regulations. Under the first two of these, a kayak IS considered a vessel, and in law (one that I wouldn't want to test on the water, however) would have priority in certain situations. The problems is that many bodies of water would seem to be covered by more than one of these sets of rules. Which would govern if such an accident happened, for instance, in New York Harbor? (A cursory reading of the NYS Boating Law suggests that it is meant to apply primarily to rivers and lakes that are not connected to the sea and thus are not covered by COLREGS -- I believe this is the case with Lake George -- but it is not made really clear.) We need an experienced maritime lawyer to answer this question... :-)

bonnie said...

Yeesh. You know, I knew that, but when you spell it out that way, it's pretty intimidating.

bonnie said...

ps - O Docker, there is definitely a collision-avoidance clause in the pilot rules that I think that the judge could have invoked as overruling the exclusion clause:

Article 4, § 41. 4: Construing rules. In obeying and construing these rules, due regard shall be had to all dangers of navigation and collision, and to any special circumstances which may render a departure from the above rules necessary in order to avoid immediate danger.

That, and the section that specifically states that "Every owner of a vessel used or operated upon the navigable waters of the state or any tidewaters bordering on or lying within the boundaries of Nassau and Suffolk counties, shall be liable and responsible for death or injuries to person or property resulting from negligence in the use or operation of such vessel..." are the reasons that I do not think that the judge's ruling means it's open season on kayakers.

And going back to the different rules that Vlad mentions - those who wrote the NYS rules quite specifically allowed for changes to be made if at some point the NYS rules ended up in conflict with higher levels of rules:

Article 4, § 41.6. Commissioner may modify. The commissioner is hereby authorized to modify, change or expand the pilot rules as set forth in this section if necessary to make them comply or be uniform with the provisions of the federal navigation law, or of the navigation rules and regulations made by the United States coast guard.

bonnie said...

OK - further to Buck's suggestion, it seemed like a good place to start would be to send a message to Saratoga County District Attorney Jim Murphy. I kept it simple, just asked if there'd been any progress on it since April & saying that as a New York State kayaker, I would support such a change.

If anyone else wants to join in, click here to go to D.A. Murphy's comment form.

Rick said...

Hey Bonnie,

My son and I have plans for extensive kayaking in Lake George this summer, so this case has more than passing interest to me. Putting aside the legalities for a moment (not that they are not important,) my main goal is to avoid being run down in the first place, if I can help it.

Two paddlers died within two weeks last summer in Lake George. The kayaker and a canoeist, both of whom were not wearing life jackets. There is a chance that both might have survived if they were. Brightly colored life jackets on a paddler are also often much easier to spot than kayaks low in the water.

The kayakers tried to signal the power boat by waving their paddles. An air horn might have done better. Or not. Who knows.

In areas as crowded with motor boats as Lake George, we try to plan our routes to tuck into shallow water whenever possible. The power boats are afraid of hitting the rocks, so we prefer to stay close to the rocks, if we can. We are very careful in crossing the channel and try to do so on a right angle to make the passage as quickly as possible.

At the risk of stating the obvious, in Lake George, the Hudson River, or the lower harbor kayakers need to practice aggressively defensive paddling.

bonnie said...

An air horn, or even just paddling harder instead of trying to get the driver's attention - so many ways it could have been a happier outcome.

Your plan for dealing with the traffic sounds pretty much like exactly what I do every time I paddle. I do have to say that Jamaica Bay is a much more restful paddling territory than the Hudson - but even so, I still try to keep out of the channels as much as I can & cross them fast when a destination demands it - especially in the summertime. Wintertime, J-bay is practically deserted - you still have to keep your eyes open but mostly it's us paddlers and the NYPD patrol boat that comes through a couple of times a day. Always good to see those guys, anyways - feels like somebody's watching out for you.

Have a wonderful time up there - it sounds awfully busy, but beautiful! I hope you'll post some pictures.