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Tenders and Potential Liability

Whether you are a captain, crew member, charter broker or owner of a vessel with motorized tenders and toys, it is very important to understand what liability issues may be lurking below the surface.

Before you let anyone out to sea on an auxiliary vessel if they are underage and/or not in possession of a valid boat operator’s certificate, you must understand that if there is an accident, liability will likely attach.  Attach where, you say?  Most certainly liability would extend to the operator of the auxiliary vessel, if indeed the operator was found at fault.  Not so fast my seagoing friends. 

In a State of Florida ruling, the court determined that if a tender or toy is “let out” to a charterer that does not possess a valid boat operator’s certificate and an accident occurs, liability runs to the value of the vessel’s hull.  What does this mean?  That if one knowingly lets a person operate an auxiliary vessel without ensuring proper age and/or certification, the injured party could be awarded damages, up to the value of the vessel.

Captain, crew, charter brokers and owners should always ensure that all operators of auxiliary vessels possess a valid and approved boater’s safety certificate.  True, this is a total inconvenience to brokers who are trying to book charters.  However, in the long run, by ensuring that all persons involved with the vessel’s operation understand potential liability issues, the beneficial owners can rest assured that they are protected in the event of any unforeseen negligence by auxiliary vessel operators (this includes crew).

Some charter brokers know about this liability issue but are not keen on sharing with captain/crew/owners.  After all, by requiring certification to run auxiliary vessels, it is an obstacle to “sell” a charter when you throw auxiliary vessel certification into the mix.  Many people booking charter hire come from destinations where it is impossible to obtain a safety operator’s certificate before starting their charter hire.

I would suggest that all captains, crew members and owners check with their local governmental authority to see if there is an approved safety course charterers can attend on location in the Caribbean prior to starting the charter hire to obtain the required boat operator’s certificate.
Alternatively, one should insist the charter guests arrive on board with an approved boat operator’s certificate in hand from their local governmental authority at the beginning of the charter hire.
Otherwise, leave the auxiliary vessels on board or let a crew member (possessing a valid boat operator’s certificate) operate the auxiliary vessels for the guests.

Gail Wasserman is Senior Director of Ashmead & White Consulting, Inc., a maritime and aviation solutions company based in the Virgin Islands.  Previously, Gail was Director of Paralegal Services in a law firm based in South Florida which served these industries.

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