Below is from the Supreme Court decision denying Dan's appeal.

"The first indictment (#03-S-006) alleged that he negligently caused the death of another by failing to keep a proper lookout while operating a boat, a class B felony."

http://www.nh.gov/judiciary/supreme/...5/littl071.htm


There was testimony at trial, albeit conflicting, that the boat he hit had no white light on. He was convicted anyway.

In my opinion there are quite a few boats out on the lake that are "failing to keep a proper lookout" at night.

This seems pretty simple to me....

Both the powerboat and the kayaks have the right to be out at night, however, the powerboat followed the rules and the kayakers did not. The kayakers were struck as the result of thier own gross negligence. PERIOD! All of this speculation of a moonlit night is hogwash. Those kayaks would only have been illuminated by the moon if the direction the powerboat was heading somehow allowed for the sillouhette of the kayaks to be seen in the moonlight. If you want to go night kayaking,. rig up a light!

There is a level of inherent risk to all activities. Just because you have the right to do something stupid, doesn't mean that the other party in the accident is at fault. If you choose (poorly) to go swimming more than 150' from the shoreline at night with nothing to alert others to your presence, you become a navigational hazard and you assume the risk of death or injury, not the powerboat that is operating legally. The right of the swimmer or kayaker, do not overrule the right of the boater. It comes down to who is the Bonehead.... in this case its the kayakers and they are damm lucky to be alive!


Woodsy

I wonder if it seems that simple to Dan?

The kayaker was breaking the rules. But the question is was the boater "keeping a proper lookout". It's possible he was, but Woodsy doesn't know that, and neither do I.

We all know the details of this case although I have never read the actual findings, thank you for posting the link to it. Nobody will deny the outcome or what led up to it. He was most likely drunk but it could not be proven by a test since he was not at the scene. He was not operating at an unsafe speed for the boat or the conditions. He did hit another boat and kill someone. He did leave the scene of the accident and did not offer assistance. Do you think that his innattention was due to the multiple drinks he had before getting behind the helm? Most likely... Do you think this would have looked a lot different if he had not been drinking and did offer assistance? I think so.

"Negligence in criminal cases is different from negligence in civil cases. . . .

In criminal cases, negligence requires proof of more than an ordinary risk, that is of a substantial and unjustifiable risk. In addition, the defendant’s failure to become aware of the risk must be a gross deviation from how a reasonable person would have acted in the same situation."

Had he not been drinking and hit a boat that was not properly illuminated I do not feel that this would have been a gross deviation from how a person would have acted in the same situation. This directly correlates to the kayak incident. The kayak was not illuminated, and as Woodsy stated the visibility of the kayaks in the moonlight would be affected by the direction that the boat was traveling in correlation to the position of the moon in the sky.

To date I have not heard of any charges being filed, or even talk of the possibility of charges so I think that MP has to agree.

So it seems Woodsy goes along with this silly idea that, "if the kayaker was in the wrong, then boater MUST be in the right".

If you don't see any lights, then its pedal to the metal!


Woodsy - If you read all the posts you would know that we all agree the kayaker was in the wrong. That is not in question. The question is should a boat be operated AT ALL TIMES in a manner to prevent hitting unlit objects like kayaks, rafts and logs?

What are you talking about???? You just seem to make it up as you go along. If the boat had been "speeding", "pedal to the metal" we would have one or possibly two dead kayakers here.

You've gotten your study done by MP and the facts don't support your crusade, give it up.

OK, let me rephrase...
 

It seems that the feeling of some here has been the boater was "automatically" in the wrong for striking the kayak because they were not paying proper attention while underway!? As a background note - I have been on this lake for 38 years (Since I was 10 mo. old.) and my friends and I grew up having spent countless summer nights out in our boats, big - small - fast - slow - you name it... We have a standing rule, one driver and one "spotter", four eyes are always better than two. Short of running with your spotlight on at headway speed from point A to point B - at night - you will be hard-pressed to "see" any unlit object sitting 12" off the water, even with fighter pilot vision! What a load of garbage! You're telling me that some knuckle-head decides to go out in a small, low-slung, UNLIT vessel, crossing into traveled waterways and has the slightest expectation that they will be SAFE from any motor vessel under way!? What in gods name would give anyone the slightest bit of comfort in thinking that's a good idea!? Yes, you go out at night (or during the day) and you as the owner / operator assume TOTAL responsibility for operating your boat in a safe and prudent manner - that is ALL boaters, and ALL boats, ALL the time. Yes, the Kayakers were VERY lucky they weren't killed, but the boat operator should be praised for doing their best to allow them to live a bit longer, and yet - they have to live with the nightmares of what "could have been". At the end of the day, the kayakers got off easy and very lucky - and they should awake every morning and thank god that boat operator saved their lives! We don't need speed limits, this is one more case of where we need better boater education, cuz as I have read 100x here - you can't fix stupid, but you can educate against it!

I think you should give up this tactic of pretending to misunderstand posts.

"Pedal to the metal" was obviously my take on Woodsy's comments. The high speed boat crowd think they have a right to go fast day or night, moon or no moon.

Go back up and read where GWC says that it is the responsibility of the little people to make sure they don't get hit.

I should have said "Pedal to the metal and hand me another beer"

I think you just did :rolleye2:

A log is unmanned, how would it light itself? Boating at night and hitting a log is a risk that everyone takes that chooses to go boating at night. The only fault that I can put on the boat driver is that they chose to go boating that night and decided to go in the direction that they went. After that it is all the kyaker. Because the kyaker unlike the log has the ability to think and convert those thoughts into actions. The kyaker had the ability to put lights on his kyak which he chose not to. At that point he is a menace to the boating community, and was very lucky that he was not hurt. Hopefully he learned that you don't go out on a body of water that has power boats without lights at night.

How quick can she stop at 11mph?

Island Lover wrote:
So your position is that only powerboats need to be operated in a manner to avoid collisions at night, right? Or is it that you believe a kayak not a boat and not subject to the same navigation rules as other boats?

I have not heard any of "The powerboat is to blame" crowd ask the question, did the kayaker, who was on the water in violation of the law, take any evasive action to avoid the accident?

Evasive action is also the kayaker's responsibility and presumably the kayakers would have been able to see the lighted powerboat (on a clear moonlit night) coming in their direction long before the accident, unless of course they were not maintaining a proper lookout!

Laughable
 

I've been on vaca at the lake this past week and have just now read this thread.I can't believe even the pro speed limit side would stoop so low as to turn this incident into the power boat having fault.Where did you people learn comman sense?I grew up all of my 49 years on the lake and can only cringe at the thought of going out on the water in a human powered craft without lights with power boats around.I was raised on a small NH lake(Baboosic) where there was very little night traffic but canoeing or kayaking without lights in powerboat traffic areas is insane,nevermind on a big lake like Winni!My boat is a PWC and I can't use that at night.I would never think that I did go out at night and someone hit me, that that craft would have any fault at all.Come on,give me a break with this crap.
The pro speed limit people are really losing credibility with arguments on this one.My instincts on agendas are usually right and it's becoming glaringly apparent on this one also.I really can't believe what I just read in this thread.

SS: I think we have to file this one under the: "Throw enough crap at the wall and sooner or later some of it will stick" department. Their arguments and positions are getting more and more rediculous by the month. After the speed limits they will try to ban nighttime driving, mark my words. I can only believe that by now the powers that be have finally understood their smoke and mirror tactics. What a joke.

ticket
 

What I have not heard anybody say in these posts is the fact that the kayaker got a ticket for driving without lights. News did not say that the operator of the speed boat was ticketed for anything. I read in here about kayaks, well this summer in fact the last week of July I have never seen so many kayaks on the lake, and it is their right to be there. I did not see one of them going over the speed limit, but I saw them going faster than headway speed within 150' of each other, Should have been given tickets for that. If the law is good for one type of boat it should be for all.

You're kidding, right?

My kayak is a sea kayak, which is much faster than any recreational kayak - and I'm a very strong paddler (I honestly can out paddle most people). Yet my top paddle speed is probably never faster than 6 mph - unless I'm surfing a large wave (often a wake), or running rapids on a river. I can only average about 4.5 mph on a long paddle - at best.

A recreational kayaker is doing extremely well if they can hit 5 mph - and that would be for a very short distance. Generally the fastest most can go is 3 to 3.5 mph.

So are these kayaks you see "going faster than headway speed" jet powered or something??? See [urll=http://www.youtube.com/watch?v=p9ryf-Uam0g] Jet Kayak[/url]

I agree 100%, and its my insticts as well that have made me come back to this thread time and time again. They (islander/S.H. and company) have really lost all credibilty at this point by continuing. Its really got my back up now. I can't stand when people act this way.

On a side note: there was a kayaker last season that got stopped just after dusk for having no light by the marine patrol while he was traveling back from Lil Bear island to Long Island. It turned out this guy had one too many beers that night and was arrested for boating under the influence.

He was traveling faster than headway speed too. LOL. Winfabs how can you spin this one?

Not quick
 

The part of your question that is tough is, Stopped as in the props are stopped? Or as in the entire ship is at a stop?

Because to stop the props, takes some time, then shift to reverse and restart props to stop momentum takes a lot longer! You must remember the Mount has no transmissions. It is a direct reversing powerplant, so it goes Forward, All stop, then reverse.

At top speed you are talking almost a 1/4 mile to stop all forward motion.

You agree that the captain was completely negligent in striking the cliff at top speed at night. Now change the struck cliff to striking "five teenagers in a seriously overloaded, unlighted canoe sitting extremely low in the water". Your legal defense of unsafe night operation would turn five teenagers into roadkill.

The problem with the scenario presents above is the cliff was likely on the chart, and wasn't required to have a light to keep a vessel from striking it. On the other hand, in your example, the canoe with 5 kids on board at night, would have been required to display a light for their own safety. While likely to be killed, its also likely that the operator of the vessel that struck them wouldn't be charge with negligence or any wrong doing. Keep twisting it, and someone will come along and keep knocking your ridiculous scenarios out of the park. :D

As an aside, my boat will only go above 45 mph at full throttle, although it's not likely to happen, as I don't abuse my stuff, nor can I afford to waste money like that.

Just how big IS the problem?
 

Here's a quote from our recent past:

http://www.winnipesaukee.com/forums/...1&postcount=14

Maybe radar should be mandatory?

I suggest, no boats on the lake without radar, GPS, Chartplotters and night vision gogles. If you don't do everything you can to prevent a collision, then you are obviously negligent. We can't let lack of a few dollars prevent safety, can we put a price on a human life? :rolleye2:

Lets post the entire sentence for clarity:

"I can see all the boats around me, even the ones without lights, landmasses, marks, and rain squalls, even the ducks."

I think what WD was stating is that they can pick up almost everything on radar. This does not mean that the unlit boats are in the middle of the broads. They could be on a mooring close to shore. Your partial post gives a feeling that this is common for boaters to be out without lights. If so, maybe a certain boat in Meredith did not have lights on after all??? :rolleye2:

Well well well
 

It turns out I know these people that own the boat that struck the kayak.I just heard straight from the occupants themselves.I've known this family for 30+ years and can assure you that they are VERY responsible and courteous people.These bonehead kayakers (2) had no lights,were totally naked,not even life preservers.The boat was navigating to come out of Sally's gut and they were looking for the last marker when they heard a small bump.They were not sure they even hit anything but stopped and turned around to look.They found one kayak floating with nobody aboard.They looked around and and finally found these two near shore and offered to help.They did not want to get on the boat because they had no clothes.The guy saw the boat coming,bailed and swam to the shore.Eventually they did and when asked where they were staying,they said they really were not sure.They were renting a place nearby and it was soon found and they were dropped off.
Here's the best part.The next day the lady that owns the house they were renting called the people that owned the boat and wanted them to pay for a new $500 kayak that "they" destroyed!With that kind of logic I'll bet she's a member of a certain anti-speed limit group.Wow!!

Remember Caddyshack? "Hey,you scratched my anchor"

I must ask

If the boat was...

"navigating to come out of Sally's gut and they were looking for the last marker"

Then the boat was inside Sally's gut when they hit the kayak.

The kayakers should have had a light and life jackets. But this was not the "out in the middle of the lake" situation we have been talking about.

So the operator of the boat is looking at the naked woman in kayak #1 when he hits kayak #2. I'd call that justifyable.

But why naked in two, one man kayaks. Naked in one, two man kayak is different.

In this case it is quite possible that the kayakers were in the shadows and harder to see than in the middle of the lake on a bright moonlit night, and most likely the boat was traveling at slow speeds. They should not have been out there and are lucky. And certainly should have been clothed...

I think we've already established that "they ahnt too smaht."

To the Rescue !
 

Don't worry, the transponders we'll be forced to carry in a few years will also solve this problem ! :eek: ;) Slightly more seriously (but only slightly) you could use a much cheaper (than radar) set of electronics to help in avoiding such collisions but it would require people to be co-operative. In this case where the kayakers didn't bother with lights or PFDs (or clothes even), I can't imagine any such system helping this .... hmmm ... cognitively challenged couple.


And FWIW: I still like the idea of the "all around" light being strobish in nature but on - ON vs on - off.

Islander asked:
Of course if the accident happened inside Sally's Gut it also means the powerboat was only traveling at headway speed when it collided with the kayak!

My question about the kayak(s) not taking evasive action or posting a proper lookout are still unanswered by "The powerboat is always at fault" group...of course now we know what the kayakers WERE looking at! :emb:

Whether the cliff had a light or not, and whether the cliff was on a chart or not, the captain's responsibility to his boat and passengers is not to collide with anything.

Not being charged with any criminal wrongdoing is small comfort. In this case, as many as five families could bring civil lawsuits against the operator of the powerboat.

My friend Gavia immer since you appear to enjoy hypothetical situations to real life, let me run this past you and see what you think. I'll change only the outcome of the situation we're discussing.

Say the powerboat had spotted the kayaks 3 feet from his port bow as he was looking for the final marker to get out of Sally's Gut, and turned hard to avoid the now abandonded (according to SIKSUKR's post) kayak, and the powerboat ran up on the rocks at the StoneDam.

One of his passengers suffered a fractured arm, another had several teeth knocked out, a broken jaw and the boat suffered a hole in the starboard bow below the waterline.

Who would you say would be liable for medial bills and boat repair?

In the first instance, the boater would clearly be negligent in the collision with the cliff.

In the second instance, while clearly small comfort, the families would have a difficult time proving negligence. :coolsm:

Keep trying though, I give you credit for tenacity. :rolleye2:

I was on the boat
 

We were not coming out of Sally's Gut at the time of the collision, but the captain did have the spotlight out looking for markers. I do not know the lake well enough to say where we were exactly.

Responsibility
 

How far do you think this responsibility goes ? A cliff or other inanimate object can't have any responsibility, it (they) aren't alive. Thus the sole responsibilty lies with the captain. This isn't the case where other people are involved. They have the responsibilty to do their part, mostly by being visible. The captain's responsibilty is to see and avoid them. I brought up the question of a swimmer, extended to a dark Moonless night, to illustrate this. I think we can all agree that under such conditions the swimmer is invisible. If you want to argue the point, I'll have the swimmer swimming underwater. So what's a boat captain to do. If he has the sole responsibility to avoid such a swimmer then he better stay at the dock because I can pose the hypotheticals such that a collision is unavoidable. Most people would consider such restrictions to be unreasonable and that's what it comes down to. We have a 150' from shore, NWS rule because (in part) we expect there to be swimmers in that area. We don't extend that NWS rule to the entire lake to cover every possible swimmer because that's unreasonable. A snorkler could surface just in front of your boat and at any speed onplane and below HB162 speeds, you might hit him. Yes he's supposed to display a dive flag but if he doesn't ... why it's like boating w/o a light at night. Does this mean because such a hypothetical situation might arise that no boats should be onplane anywhere on the lake ? That any captain onplane is not being responsible because of such a hypothetical ?

You have the responsibility to not hit things (people, other cars, etc) when you're driving. Yet there's always the chance that someone may cross the lines and enter your lane causing a collision. Does your responsibilty to avoid a collision mandate that you pull to the side of the road everytime there's an oncoming car ? No, because that's unreasonable.

In this case the kayakers didn't do their part. I've yet to hear anything that says the powerboater wasn't doing his part. Maybe he was and maybe he wasn't but I'm giving him the same benefit I gave to the Hartman's when they said their lights were on. The kayakers did something stupid and almost paid dearly. End of story.

Mee-n-Mac

That is the best emoticon I have ever seen.

:laugh:

Always keep a prudant watch
 

I think everyone is aware that when travleing at night on the lake there could always be a log floating, a broken down boat without any lights on or just some foolish people.
From reading all the posts, it makes me certain of one thing. There are a lot of conscientious people on the lake that are trying there best to keep it safe for everyone and care about it like I do.

More people should wave and enjoy just being out on , " the beautiful water in a high place",we all share.

This site makes for enjoyable reading during my lunch at the office.

I stand corrected Paugusbaby,I got my info from my sister who talked to David Monday or Tuesday.

Hmmmm....me thinks you are caught in a little white lie Siksukr
 

SIKSUKR STATED: It turns out I know these people that own the boat that struck the kayak.I just heard straight from the occupants themselves.

Now you say - You actually got your info from your sister - was your sister an occupant or was she speaking to "David" and she relayed the info to you? You in turn passed it along to the forum - sorta like "Telephone" when we were kids - the story never ends the way it begins!;)