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

Comments

[Matthew Chauvin]

Our firm has recently filed suit on behalf of one of the plaintiff's in this horrible tragedy, the first in the State of New York. If anyone has information that might be helpful, we would be grateful.
Hacker and Murphy, LLP
7 Airport Park Blvd
Latham, NY 12110

[anonymous]

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.

[anonymous]

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