Amtrak Train Crash in Washington State

Was The Ethan Allen Tragedy Preventable?

Here are the poll results thus far on the issue of whether the Ethan Allen capsize was preventable.  Feel free to vote (see right margin poll).

Was The Ethan Allen Tragedy Preventable?

89% of the people vote "YES", the tragedy was preventable with little or modest effort.

See results here.

Did Shoreline Know It Needed 2 Crew?

An anonymous commentator on this blog has posted the following message:

She KNEW that there are supposed to be two staff on board, why did she seat them all when she KNEW there was only one? That is the question.

It is unclear who "she" is in this message, although it appears to pertain to a Shoreline Tours employee, the owner/operator of the Ethan Allen.  Of course, if two crew were not available, the cruise would not have gone out. If Two crew were available, that crew member could have prepared passengers for the wave, perhaps tempering the shift of passengers which may have contributed to the capsize.  If two crew were on board, life jackets might have been more available and more people might have been saved. While the lack of one crew member may not have been a direct cause of the capsize, it certainly may have contributed to the number of deaths.

Physics and Common Sense Govern Conduct

Captain Ray Bollinger lends this piece of sanity to the fundamental issue of where the "safety line" for vessels such as the Ethan Allen should be drawn. Mr. Bollinger's comments, as always, are sound.

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Dear Mr. Schaefer:

"Minimal standards," "minimum standards," at the AAB we usually add the word "regulatory" as in "minimum regulatory compliance," or minimum regulatory standards." We also maintain that "minimum regulatory compliance is not the standard of seaworthiness or a seaworthy vessel." In the instant case, the M/V ETHAN ALLEN may have been in compliance with all New York regulation, which appears silent on stability. However "industry standards" don't "govern" or "control." Adherence to industry standards is not the standard of care either. We (the AAB) have often demonstrated that "industry standards" are sometimes self serving and profit serving with little contribution to safety. What happened on the M/V ETHAN ALLEN was violation of "laws" even more basic than "industry standards" or "regulations." What was violated were laws of physics and hydrodynamics. The Coast Guard didn't "define" these laws in their regulatory scheme for stability. They simply acknowledged, identified, and incorporated them into regulation. The existence of the Coast Guard regulations demonstrates the fact that these laws are widely known in the maritime sector. But the violation is of natural law. Obviously, the ETHAN ALLEN slipped through a regulatory jurisdictional loophole, avoiding by route the application of the Coast Guard regulations, and by legislative gap, any New York State regulations incorporating these natural laws. There appears to be a danger in any language that appears to ascribe to the Coast Guard authorship of the laws that deal with center of gravity, center of buoyancy, righting moment and the equations that predict the behavior of these values. If the Coast Guard is the source, and the Coast Guard regulations don't apply as a matter of law, then these laws of physics and hydrodynamics may be dismissed.

As I wrote in our COMMENTATOR concerning the "Point Bend" custom on the Western Rivers; "judges who ignore the laws of physics and hydrodynamics commit reversible error".  The "laws" violated in this situation are easily seen in unfortunately inapplicable regulation, but they weren't created there. The laws of physics and hydrodynamics apply with equal force everywhere and at all times and we violate them at our peril. The chief value of the Coast Guard regulations in this case is as an illustration that the laws are well known in the maritime industry. But we caution against the use of any language that blurs the origin of these "laws." It may be all too easy for a judge, deficient in scientific education, to blow off the proper stability practices as "inapplicable." He or she may do this based on the simple legal argument that the Coast Guard regulations don't apply as a matter of black letter law to a vessel regulated entirely by the State of New York. The actual author of these "laws" should prove much harder for a judge to blow off.

  I know many lawyers are reluctant to get into "natural law" arguments. But this isn't natural law of the highly esoteric or arguable type. This is physics, and very hard and fast almost "black letter" area of the "natural law." In stability regulation, the human regulators are simply attempting to force due consideration and planning around the preexisting and self enforcing laws of nature. If you ignore them mother nature causes your vessel to roll over. The human regulators are simply attempting to help vessel owners avoid this natural penalty. If not considered this "natural law" is truly blind. Violate the laws of hydrodynamic stability and your vessel rolls over, every time. There is no consideration by nature or nature's God of who or what is aboard at the unfortunate moment. The consequences are easily avoidable by planning hull forms, passenger seating, and operations in compliance with these laws. If a boat's manager doesn't understand stability anyone who can use a dictionary or phone book can easily use the Code of Federal Regulations where a complete system for compliance with these natural laws is described. Surely the ETHAN ALLEN at some point was designed for some purpose by a naval architect. Why wouldn't it dawn on an owner that a naval architect should be consulted before something as fluidly dynamic as a vessel is modified?

can't walk on water or fly of his own accord. So we have always relied on expert knowledge when we attempt to transit air or water. Why didn't the owners of the ETHAN ALLEN do so in this case? I hope this gives you some ideas for the language that might be used in formulating the language of the plaintiff in the various pleadings and arguments. The language of the defense is also pretty well obvious as centering on the concept of "regulatory compliance." I would predict that properly handled "regulatory compliance" defenses will be swept away by the argument that causation was a planned and deliberate violation of physical law that the owners knew or should have known existed.

Ray Bollinger

Industry Standards Required Re-testing After Modification

I received the following message from another expert with regard to marine safety issues.  Here is what Captain Bollinger has to say about the Ethan Allen capsize.

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Dear sir:

I enjoyed your web site concerning the capsize of the M/V ETHAN ALLEN ...  By way of introduction I am Capt. Ray Bollinger, a forensic examiner with the American Admiralty Bureau, Ltd. I believe this accident was preventable chiefly by the company that owns and operates the M/V ETHAN ALLEN. The direct cause appears at present to be the combination of two elements of mismanagement. First the stability of the vessel was modified without the proper design work, tests and safeguards. While New York State which had regulatory authority over the vessel has no specific regulations on these issues, there are recognized standards that apply. The Coast Guard regulations and the various classification society rules that would have been applied to this vessel if she had been in an area regulated by the Coast Guard, or had been classed, are not pulled out of thin air but are derived from  authoritative literature such as the Naval Institute's "Introduction to Naval Architecture" (ISBN 0-87021-318-0), particularly chapters 6 through 8. This text and similar standard texts used in the education of naval architects, naval / merchant marine officers and others describe and define the basic underlying laws of physics and hydrodynamics that the regulations and classification society rules are based on. These are laws of nature that cannot be ignored with immunity. The presence of legal regulations and technical codes that incorporate these natural laws only serve to underscore that these are known natural laws. In any contest over liability the known character of the natural laws of stability will be very damaging to the owners of the M/V ETHAN ALLEN. The second cause of this accident appears at present to be mismanagement of "live ballast." In short, the passengers themselves were an important element in establishing the centers of gravity, buoyancy, and the resulting righting moment. Their weights had to be carefully managed to avoid having the center of gravity rise above the center of buoyancy. This meant that the seats had to be carefully designed and then the people had to be pretty much confined to those seats or their movements carefully managed. This was not done. There is an extensive history of cases involving the mismanagement of "live ballast" associated with the Witcker Capsules used on offshore oil rigs off of Texas and Louisiana. In years past quite a few crewmen lost their lives when lifeboatmen in charge of these capsules failed to have them fasten their seat belts during not only actual evacuations but also during drills. As to the role, if any of the excursion boat MOHICAN, she does not appear capable of producing a wake capable of capsizing a vessel of this size if not in exceptionally "tender" condition. Assuming she was cruising at routine speed her wake should not have been problematic. Her "contribution" if any is dependent on some element of unreasonable behavior that is not apparent at this moment. The MOHICAN is a displacement vessel and will create a wake of some sort at even very slow speeds. She is also relatively shallow draft, so there is a finite limit to the wake she can create at even full speed, and this wake would not normally be considered "excessive" unless very close to shore side delicate structures or very small recreational craft. Her wake, even at full speed should not have been problematic for a boat of say 30 feet, assuming all else being normal.                                                                        

                                                                      AAB Codes and Standards Dept.

 

                                                                      Capt. Ray Bollinger

                                                                      Master, Pilot AGT

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Captain Bollinger:

Thanks for the comment.  Enrico Schaefer

The thought that be complying with minimal New York State standards (even assuming they did this much), the owners of commercial vessels are off the hook is nonsense. It is industry standards that should be the test.   The point to me is that stability testing has been standardized and defined by the coast guard.  Stability testing is cheap, easy and straight forward. Any business taking people on the water ought to ensure that its vessel can pass the industry standard stability testing before it is commissioned and after any modifications.  It appears that the owner/operator of the Ethan Allen was only concerned about how many passengers if could get on-board, not how many passengers it can safely put on-board.

Ethan Allen's Center Of Gravity: Raising the Decks?

There are some great comments from boat builders and architects at the BoatDesign.net BBS. There is a suggestion that the deck of the Ethan Allen was raised as part of its conversion to a tourist vessel, or sometime thereafter.  If so, raising the deck would have again raised the center of gravity and affected the boat's stability.  Here is what one boat designer says:

If she were my boat, this is what I would have done once I decided to raise the deck:

1) Added the estimated ballast, turning my 9.5 ton boat (again, my guess) into an 11 ton boat. That way I could also make up for the imbalance of seating too. The ballast, probably 19 cuft of concrete, would be tabbed to the hull so it could not shift. The tabbing would be strong enough to withstand a 90 deg. roll.

2) Bolted the seats to the deck, so they could not shift. This would also be strong enough to withstand a 90 deg. roll.

3) Added strong 'arms' to the ends of the seats, so the passengers could not slide out of them. Also strong enough to withstand a 90 deg. roll.

4) Put cribbing under the seats to hold in place one life jacket for every seat 'place' , so that they would be in easy reach of the passengers.

Bob also notes that "I think the State of New York needs to be sued as well. After all, they are paid to look after our interests, not just kowtow to their special interest 'campaign contributers'."

Ethan Allen Converted From Liesure Craft

A naval Architect from Holland/France had this comment at the BoatDesign.net BBS about the Ethan Allen accident which I thought was very thoughtful:

I think the Ethan Allan is a perfect but bad example of re-converting a specific boat into something the original designer did not had in mind. We call this improper metaphorical use of an object, in this case a boat that has designed as a leisure one rather than being a kind of passenger ferry.

When companies convert boats for service outside their original intended use such as appeared to have occurred with this Dyer vessel, shouldn't they have to do testing to make sure the boat is seaworthy for that use?

Ethan Allen Tragedy Easily Preventable

There is a great post on how easy the Ethan Allen tragedy could have been to prevent.  Capt. Stephen Olson of Belfast editorializes that:

The sinking recently of the excursion boat Ethan Allen, with the drowning of 21 passengers, made clear that passenger vessel safety cannot be ignored. The regulations the U.S. Coast Guard has in place to ensure the safety of most passenger vessels are a good thing and if they'd been applied to the Ethan Allen, the tragedy could have been prevented.

But Coast Guard standards, inspections and testing were not mandatory for the Ethan Allen during its tenure as a tour boat, and the boat's owner and operator did nothing to perform the industry standard stability test absent such a  mandate.  It seems to me we have two choices when it comes to preventing preventable deaths: (1) add more layers of government regulation or (2) allow jurors the opportunity to decide if commercial tour boat companies should do more when it comes to their passenger safety. I would rather have my neighbor jurors 'setting the safety bar' for America, than any layer of government - state, federal or local. What do you think?

Was Lake George Capsize An Act Of God?

One commentator named Rex strongly disagrees with the suggestion that the Ethan Allen capsize on Lake George, New York was anyone's fault.  Rex states:

So you want to make a case for negligence? Have at it--tell us what was negligent. The boat complied with all Coast Guard and NYS rules and regulations. The proximate cause evidently was a wake created by a passing boat. The weather was clear and the normal waves on the lake were slight. Wind wasn't a factor. Sometimes accidents just happen with no one to "blame."

I respect Rex's opinion and agree that many things in life happen where there is no 'blame.' Perhaps blame will be too harsh a word for some people to use when examining what what occurred on Lake George. But I disagree that just because bad things happen to people every day means we should avoid the difficult task of assigning levels of responsibility and finding ways to increase awareness and safety.  No one intended this accident to happen but several players could have prevented it with a relatively minor amount of effort. Taking people out on the water is a heavy responsibility for any company. When we examine what was done to ensure the safety of Ethan Allen passengers, the answer thus far appears to be nothing.  No dockside safety briefing.  No life jackets where they can be used by passengers. The attempted compliance with minimal or non-existent New York Department Of Parks and Recreation regulations is hardly where most people would set the safety bar for a commercial enterprise taking people out on the water.

As suggested above, I do not agree with Rex that the Ethan Allen "complied with all Coast Guard and NYS rules and regulations."   No Coast Guard Regulations applied to the Ethan Allen since it was on an inland lake governed completely by New York law.  The Ethan Allen would have failed the Coast Guard stability test (as it did after the capsize) at about the 11 person mark.  Further, the boat was never tested for its capacity after it was modified by its owner/operator Shoreline Cruises. Nothing stopped Shoreline from testing stability using the standard coast guard test after it added so much more weight up high. Any reasonable ship owner would have wondered about this clear safety issue.  I know, I taught boating for over 9 years. I understand better than most because I used to be the person responsible for the lives of my passengers, both kids and adults alike.

As to the suggestion that it was the waves fault ... let's just say that if this was the standard we held commercial passenger businesses to, we would not have seat belts in our cars today, let alone air bags.  The wave the Ethan Allen encountered was no more unexpected than encountering pavement on the highway. Anyone who wants to blame a boat capsize on a wave is willing to rationalize anything. Many people today simply refuse to make anyone responsible for much of anything.  These same people sing a different tune, though when it is one of their family members needless killed in an otherwise easily preventable accident.

You can voice your opinion on this Wiki whether any of the following entities bare a level of responsibility for the Ethan Allen accident:  (1) Shoreline Tours (Organized the tour for Michigan victims); (2) Shoreline Cruises (owned and operated Ethan Allen); (3) NY Department of Parks & Recreation (Responsible to certify vessels for safety); (4) US Coast Guard (develops guidelines for safety including capacity); (5) Wake from the Mohican tour boat owned and operated by the Lake George Steamboat Company or another ship; (6) Dyer Boat Company (the manufacturer of the Ethan Allen boat hull).

Who could have best prevented this accident? Voice Your Opinion Here.

Ethan Allen Survivor Talks About Safety

Donna Cook of Hamburg Township gave the Ann Arbor News her first hand account of the Ethan Allen capsize on Lake George, but I thought this observation by Ms. Cook was the most important.

"It was a tragic experience I do not want to go through again,'' Cook said. "But the good of it is that changes will be made to these cruise boats. They're going to put these people through the ropes to make sure they're safer from now on.''

I expect that family members of those who dies and also those that survived will be motivated to make sure that improvement in in tour boat safety is increased and revised. This is one of the most important benefits that can come from litigation, a benefit that is sometimes lost if lawyers focus on contingency fees rather than client goals.

Using The Ethan Allen Tragedy As A Lesson

Traverse Legal has just launched a Wiki concerning the Ethan Allen tragedy on Lake George. Here, anyone can post information and discuss how this tragedy might improve safety in the tour boat, ferry business which services our waterways.

Who was more responsible for this accident? Voice Your Opinion Here.

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