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Old 16-06-2008, 19:52   #226
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One more and I'll shut up.

This is for our members down under.

This was in 2004. It's a long read and hard to pull out all the details.

Queensland 2004

At night, a boat traveling 25kts (in an area where there is a posted speed limit of 40kts) hits a tinny anchored about 20 meters off a bank. It is disputed as to whether the anchor light was on. The court determines that it was when they anchored, but probably wasn't at the time of the collision. A passenger (who suffered spinal injuries) in the tinny sues the operator of the tinny and the operator of the boat. All the people in the tinny had been drinking. The judge assigned 45% liability to the boat operator for excessive speed, 45% to the tinny owner for improperly anchoring in a dangerous location, saying that it was foolhardy to rely on just an anchor light to protect you life. He assigned 10% to the plaintiff saying he could have asked for the tinny to be moved if he thought it was unsafe. Interesting.

I think I have all that right, but I didn't go back and check everything.

I will say that this is only 3 examples. It is no proof. But I didn't find any that said an unlit vessel was excused. And I did find 3 examples, 2 in the US, that say that being unlit at least carries some, if not all, the liability.

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Old 16-06-2008, 20:06   #227
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Originally Posted by dacust View Post
<snip>
I will say that this is only 3 examples. It is no proof. But I didn't find any that said an unlit vessel was excused. And I did find 3 examples, 2 in the US, that say that being unlit at least carries some, if not all, the liability.
I don't think anyone has argued that there is not blame enough to be spread around, Dan, but most of us who see this as unjust feel that the DA's decision to completely excuse the operator of the power vessel flies in the face of common sense.

And I think your last line is a pretty good summation of the DAs position; i.e., "If we can't come up with something like 'The sailboat was unlit,' we've got nothing, and our friend Chief Deputy Perdock is screwed!"

And if, as you seem to infer, the sailing vessel is at fault, how does that responsibility fall entirely on the head of one of the guests, who happens to be sitting at the tiller, and not on the owner of the vessel, a few feet away and also over the legal limit for intoxication?

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Old 16-06-2008, 21:17   #228
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I'm going to try again.

My last two posts ended up back at 212 and 213. Looks like maybe a problem with the clock on the server. But it looks right now, so let's see if this posts in the correct order.

Edit:

It worked. In the right place.

So, TaoJones, my reply to you is back on page 5 at post 212.
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Old 17-06-2008, 00:48   #229
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Quoting the COLREGS doesn't make any sense - They are operating under California Boating Rules, a link for which I posted - and the reason I posted it. They are similar but diverge in some not so good ways.

Also, correct me if I am wrong but Dinius is charged under california vehicular statutes not admiralty law - so someone needs to post some california vehicular manslaughter decisions not 1847 collision decisions.

I wonder if we are focusing on the wrong thing - i.e. the technical aspects of who hit who. I don't know but it would not surprise me if all they have to do to get a vehicular manslaughter charge is determine that Dinius was operating the boat, Dinius was drunk and had he "not" been drunk he could have taken action to avoid the death of a passenger in "his" vehicle.

I reckon this is more about drinking and driving and drinking and boating than who hit who.

I'vs stated many time that Dinius is the only one who should get a pass here. I am perfectly on-board with the fact that Perdock was going too fast for conditions and is culpable.

On the sailboat side, I am still not convinced about the lights being on as there will be experts on both sides of that argument. The occupants of the sailboat were all very drunk and I do not condone the intoxicated operation of vehicles.

Was their judgement impaired on the sailboat? Assuredly. When I hear a speed boat zooming around - and I have on several occasions here, I get my biggest flashlights out and start illuminating the sails - especially if I am becalmed.

It burns me that the owner of the sailboat walks away from this tragedy.
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Old 17-06-2008, 05:31   #230
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Quoting the COLREGS doesn't make any sense - They are operating under California Boating Rules, a link for which I posted - and the reason I posted it. They are similar but diverge in some not so good ways.

Also, correct me if I am wrong but Dinius is charged under california vehicular statutes not admiralty law - so someone needs to post some california vehicular manslaughter decisions not 1847 collision decisions.

I wonder if we are focusing on the wrong thing - i.e. the technical aspects of who hit who. I don't know but it would not surprise me if all they have to do to get a vehicular manslaughter charge is determine that Dinius was operating the boat, Dinius was drunk and had he "not" been drunk he could have taken action to avoid the death of a passenger in "his" vehicle.

I reckon this is more about drinking and driving and drinking and boating than who hit who.

I'vs stated many time that Dinius is the only one who should get a pass here. I am perfectly on-board with the fact that Perdock was going too fast for conditions and is culpable.

On the sailboat side, I am still not convinced about the lights being on as there will be experts on both sides of that argument. The occupants of the sailboat were all very drunk and I do not condone the intoxicated operation of vehicles.

Was their judgement impaired on the sailboat? Assuredly. When I hear a speed boat zooming around - and I have on several occasions here, I get my biggest flashlights out and start illuminating the sails - especially if I am becalmed.

It burns me that the owner of the sailboat walks away from this tragedy.
Where I differ from you, but not strongly, mind you, is that I don't feel as sorry for Dinius as you. After all that's the law there. I totally agree that real life justice should leave Dinius out of it and place some blame on the captain. But we are responsible for knowing the law. Dinius should know that, under California law, being drunk he was taking a big risk by taking the tiller. It is unfair that for a fluke of timing it's not the captain who is in trouble. It is even more unfair that the officer hasn't been charged.

I think over all, your opinion as stated above is closest to mine I've seen posted, it's just that I lean more towards thinking the lights were on and don't feel as sorry for Dinius.

But, as it has been said before, there's still the civil courts.

Oh, as to quoting COLREGS, I agree. At least on my part that was partly thread drift. But it also pointed out that in more than one jurisdiction, even though it doesn't specifically state that being unlit incurs liability, the courts decided that's the case. Of course, all of those cases were civil cases which gave them the option to apportion blame. I think the lights were on, but if, based on the testimony they hear, the court decides they weren't, I figure there's a good chance the California courts would see it the same way. And again, under California law it sounds like that would fall on Dinius.

Another aside, it wasn't an 1847 collision. It was, I think 2003. They just quoted an 1847 decision in the 2003 case.

Standard disclaimer: This is only my opinion based on press reports, not based on facts.

-dan
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Old 17-06-2008, 05:35   #231
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Both Dans are absolutely right, in my view. There's plenty of blame to go around.

Drifting, lit or unlit, with no ability to maneuver, and under the influence of alcohol, means to me that folks on the boat share some amount of responsibility for the tragedy. The owner, as master of the vessel, is the one who should be held at least partially responsible, not Dinius. Nav lights or no, the fact that the owner didn't have a powerful spotlight available to warn off approaching boats in a situation like that is gross negligence.

Of course, Perdock's behavior was criminally negligent, based on what I've read about the case. So where does that leave us? Admiralty Law provides for splitting the "blame" between the parties, even in cases where only one clearly violated the Colregs, and the other simply didn't get out of the way. I wonder what, if anything, California law says about split culpability.
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Old 17-06-2008, 08:43   #232
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Well, I hate to be the lone draconian, but I think the trial is appropriate. Since motor vehicle laws are being applied here, it is entirely appropriate that the operator is in the hot seat, especially since he was over the legal alcohol limit. As the laws are written, I see no other alternative. I can only hope that the trial exhonerates him, or at least sentences him lightly.

The DA, on the other hand, should be sacked for the gross miscarriage of justice taking place here. While Dinius should be on the hot seat, the speedboat operator should be in the fire. The sailboat owner, too, shares some of the blame. If admiralty law were applied here, all three parties would almost certainly share blame, the majority of which would fall on the speedboat operator. The DA has the power to issue the appropriate charges, not the "idiot in robes". The judge is handcuffed by the law into letting the trial proceed. The fact that guiltier men are free does not derail proceedings against a man who shares some blame.

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Old 17-06-2008, 09:37   #233
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I am pleased to see some counterpoint here. There should be some discussion as to what laws should be applied, as this incident occurred in navigable waters, which should be under the jurisdiction of the Coast Guard, and therefore maritime law should apply. (See recent Coast Guard clarification on definition of navigable waters)
California is a pure negligence state, meaning, each party can be a certain percentage at fault. This means that it is not simply who is 51% or more at fault, but a single party can be deemed 10%, 20% etc. As such, this would effect the civil proceedings, but would have no effect on the criminal proceedings, if there is comparative negligence, as any fault in an accident resulting in death would be considered a criminal act. I will search for the applicable California statutes, and post them later today.
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Old 17-06-2008, 09:59   #234
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That's good info, Kai. Thanks for digging into it.
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Old 17-06-2008, 10:18   #235
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I was not in any way trying to argue whether your conclusions were right or wrong.
I'm aware of that. I was using your post as a springboard to underscore a point I wanted to make.

Which I will do again.

I have made this point before, but I think it bears worth repeating because I see people falling into its trap.

Looking at the criminal culpability of Dinius to determine the criminality of Perdock's actions is a wrong turn in the analysis. That Dinius broke criminal law is no defense to the fact that Perdock broke it too.

The central question of this case, aside from evidentiary questions of what really happened, is who's criminal behavior was the cause of the death?

For the sake of argument, if we conclude that the navigational lights were not on (which is the position of the DA), then is Dinius' crime, as a one-time guest operator of the vessel without lights, a prime cause of the death, or was it Perdocks high speed which prevented him from seeing an unlit vessel and taking appropriate evasive action?

Given that the rules required Perdock to avoid hitting unlit vessels, and his obvious failure to do so, draws me to the conclusion that Perdock committed manslaughter. The fact that Dinius also commmited manslaughter by piloting without lights is in no way a defense to Perdock's crime.

Therefore, I conclude that the DA's failure to charge Perdock is in itself a crime in terms of some abuse of power and principal part of a cover up. Even taking the facts as the DA wants them, Perdock was guilty of manslaughter. The DA's use of the supposed manslaughter by Dinius does not in any way, as a matter of law or logic, mean that Perdock did not also commit manslaughter. Where the actions of two men are both causal elements in a death, they are both guilty of manslaughter and law permits them both to be so charged and convicted.

In my view, if you take the facts as the DA wants them, the actions of both men were causal elements in the death.

In other words, the DA has got the world convinced that this charging of manslaughter is an either/or proposition when, in fact, that is not necessarily the case. The law does not required that one man be charged while the other is not, if the actions of both men are each causally conneted to the death of the woman.

This unspoken and unexplained of charging either man, but not both, is exhibit A of the DA's participation in a cover up. From where I sit, I can divine no reason to fail to charge Perdock for manslaughter--even if Dinius also commited manslaughter--other than the DA's participation in a cover up. Perdock's actions were at least as much a cause of the death, if not more than Dinius' actions. Therefore, the reasons to charge Perdock are equal to or greater than the reasons to charge Dinius, even when assuming the facts as the DA wishes them to be.
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Old 17-06-2008, 10:31   #236
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- so someone needs to post some california vehicular manslaughter
I quoted the statute at post 141 of this thread, and you will see that the statute incorporates violations of the navigational rules of the road as an element of the manslaughter charge, so those maritime cases may be relevent.
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Old 17-06-2008, 10:34   #237
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The judge is handcuffed by the law into letting the trial proceed. The fact that guiltier men are free does not derail proceedings against a man who shares some blame.
Agree 100%. The larger issue in this case is not whether Dinius is guilty. It's why has Perdock not been charged.
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Old 17-06-2008, 11:23   #238
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I quoted the statute at post 141 of this thread, and you will see that the statute incorporates violations of the navigational rules of the road as an element of the manslaughter charge, so those maritime cases may be relevent.
Actually, that's not correct. The statutory incorporation is largely about drinking and boat, not navigational rules of the road. I stand corrected.
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Old 17-06-2008, 11:41   #239
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I quoted the statute at post 141 of this thread
Here it is again:

Penal Code
Manslaughter


192.5. Vehicular manslaughter pursuant to subdivision (b) of Section 191.5 and subdivision (c) of Section 192 is the unlawful killing of a human being without malice aforethought, and includes:

(a) Operating a vessel in violation of subdivision (b), (c), (d), (e), or (f) of Section 655 of the Harbors and Navigation Code, and in the commission of an unlawful act, not amounting to felony, and with gross negligence; or operating a vessel in violation of subdivision (b), (c), (d), (e), or (f) of Section 655 of the Harbors and Navigation Code, and in the commission of a lawful act that might produce death, in an unlawful manner, and with gross negligence.

(b) Operating a vessel in violation of subdivision (b), (c), (d), (e), or (f) of Section 655 of the Harbors and Navigation Code, and in the commission of an unlawful act, not amounting to felony, but without gross negligence; or operating a vessel in violation of subdivision (b), (c), (d), (e), or (f) of Section 655 of the Harbors and Navigation Code, and in the commission of a lawful act that might produce death, in an unlawful manner, but without gross negligence.

(c) Operating a vessel in the commission of an unlawful act, not amounting to a felony, and with gross negligence; or operating a vessel in the commission of a lawful act that might produce death, in an unlawful manner, and with gross negligence.

(d) Operating a vessel in the commission of an unlawful act, not amounting to a felony, but without gross negligence; or operating a vessel in the commission of a lawful act that might produce death, in an unlawful manner, but without gross negligence.

(e) A person who flees the scene of the crime after committing a violation of subdivision (a), (b), or (c), upon conviction, in addition and consecutive to the punishment prescribed, shall be punished by an additional term of imprisonment of five years in the state prison. This additional term shall not be imposed unless the allegation is charged in the accusatory pleading and admitted by the defendant or found to be true by the trier of fact. The court shall not strike a finding that brings a person within the provisions of this subdivision or an allegation made pursuant to this subdivision.

(Amended Sec. 5, Ch. 747, Stats. 2007. Effective January 1, 2008.)

Penal Code Section 192.5 - Manslaughter

I believe Dinius is charged with 192.5(b).

I believe Perdock should have been charged with 192.5(c)

[operating a vessel in the commission of a lawful act that might produce death, in an unlawful manner, and with gross negligence]

or 192.5(d)

[operating a vessel in the commission of a lawful act that might produce death, in an unlawful manner, but without gross negligence].
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Old 17-06-2008, 11:46   #240
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Operation of Vessel

655. (a) No person shall use any vessel or manipulate water skis, an aquaplane, or a similar device in a reckless or negligent manner so as to endanger the life, limb, or property of any person. The department shall adopt regulations for the use of vessels, water skis, aquaplanes, or similar devices in a manner that will minimize the danger to life, limb, or property consistent with reasonable use of the equipment for the purpose for which it was designed.
(b) No person shall operate any vessel or manipulate water skis, an aquaplane, or a similar device while under the influence of an alcoholic beverage, any drug, or the combined influence of an alcoholic beverage and any drug.
(c) No person shall operate any recreational vessel or manipulate any water skis, aquaplane, or similar device if the person has an alcohol concentration of 0.08 percent or more in his or her blood.
(d) No person shall operate any vessel other than a recreational vessel if the person has an alcohol concentration of 0.04 percent or more in his or her blood.
(e) No person shall operate any vessel, or manipulate water skis, an aquaplane, or a similar device who is addicted to the use of any drug. This subdivision does not apply to a person who is participating in a narcotic treatment program approved pursuant to Article 3 (commencing with Section 11875) of Chapter 1 of Part 3 of Division 10.5 of the Health and Safety Code.
(f) No person shall operate any vessel or manipulate water skis, an aquaplane, or a similar device while under the influence of an alcoholic beverage, any drug, or under the combined influence of an alcoholic beverage and any drug, and while so operating, do any act forbidden by law, or neglect any duty imposed by law in the use of the vessel, water skis, aquaplane, or similar device, which act or neglect proximately causes bodily injury to any person other than himself or herself.
(g) Notwithstanding any other provision of law, information, verbal or otherwise, which is obtained from a commissioned, warrant, or petty officer of the United States Coast Guard who directly observed the offense may be used as the sole basis for establishing the necessary reasonable cause for a peace officer of this state to make an arrest pursuant to the United States Constitution, the California Constitution, and Section 836 of the Penal Code for violations of subdivisions (b), (c), (d), and (e) of this section.
(h) In any prosecution under subdivision (c), it is a rebuttable presumption that the person had 0.08 percent or more, by weight, of alcohol in his or her blood at the time of operation of a recreational vessel if the person had an alcohol concentration of 0.08 percent or more in his or her blood at the time of the performance of a chemical test within three hours after the operation.
(i) In any prosecution under subdivision (d), it is a rebuttable presumption that the person had 0.04 percent or more, by weight, of alcohol in his or her blood at the time of operation of a vessel other than a recreational vessel if the person had an alcohol concentration of 0.04 percent or more in his or her blood at the time of the performance of a chemical test within three hours after the operation.
(j) Upon the trial of any criminal action, or preliminary proceeding in a criminal action, arising out of acts alleged to have been committed by any person who was operating a vessel or manipulating water skis, an aquaplane, or a similar device while under the influence of an alcoholic beverage in violation of subdivision (b) or (f), the amount of alcohol in the person's blood at the time of the test, as shown by a chemical test of that person's blood, breath, or urine, shall give rise to the following presumptions affecting the burden of proof:
(1) If there was at that time less than 0.05 percent, by weight, of alcohol in the person's blood, it shall be presumed that the person was not under the influence of an alcoholic beverage at the time of the alleged offense.
(2) If there was at that time 0.05 percent or more, but less than 0.08 percent, by weight, of alcohol in the person's blood, that fact shall not give rise to any presumption that the person was or was not under the influence of an alcoholic beverage, but the fact may be considered with other competent evidence in determining whether the person was under the influence of an alcoholic beverage at the time of the alleged offense.
(3) If there was at that time 0.08 percent or more, by weight, of alcohol in the person's blood, it shall be presumed that the person was under the influence of an alcoholic beverage at the time of the alleged offense.
(k) This section does not limit the introduction of any other competent evidence bearing upon the question whether the person ingested any alcoholic beverage or was under the influence of an alcoholic beverage at the time of the alleged offense.
(l) This section applies to foreign vessels using waters subject to state jurisdiction.

(Amended Sec. 1, Ch. 23, Stats. 1997. Effective January 1, 1998.)


Harbors and Navigation Code Section 655 - Operation of Vessel

I feel that Perdock violated 655 (a) above, and that constitutes the 'unlawful manner' referenced in the manslaughter statute 192.5 (c) and (d).
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