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Old 21-10-2008, 18:22   #316
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And I do see the irony in that the U.S. is in no position to seriously punish drinking and driving because its jails are full to the brim with drug dealers.
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Old 21-10-2008, 21:05   #317
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Be careful that you don't quote evidence that may or may not be in record. Unless you have transcripts - and yes I have read evidentiary hearing sttuff - it is imprecise to cite allegations as evidence.

In regards to having no clue about the law or the operation of a Sailboat - unfortunately in the US that has become a common defense. The other common defense has become motive. i.e. I hate my parents therefore it's OK to murder them.

Once again my points are not being addressed - I don't think Dinius should be on trial for manslaughter. I also don't think Perdock should be.

If the law says Dinius should be prosecuted, and the law says Perdock should be prosecuted then I am in disagreement with the law. I am not here to argue which law should or should not be applied.

Not to be a smart aleck but Perdock's high rate of speed is not the cause of the death. The collision is the cause of the death.

Where you have different rates of speed between vehicles, in this case boats, sharing navigable waters, you have risk.

There is lots of conjecture about what Perdock could and could not have seen had he been travelling slower. I do not know that there is a posted speed limit. And no one can say with certainty what lower rate of speed eliminates the accident - We have high speed ferries all over Singapore. I view it as my responsibility as a very slow sailboat operator to have awareness of this and take necessary precautions to avoid these 30+ knot boats at night.

The words being used for the "speed limit" are safe for conditions. What is the test?

Lack of collision seems to be the only test. Which doesn't seem very smart. High speed ferries operate here continuously at night above 30 knots. The conditions are conducive to 30 knot speeds I presume.

The world will tell you that from the outside looking in the US is schitzophrenic. We demand individual freedoms yet we wish to prosecute severely those that do harm. I don't know how to reconcile that any longer.

Here is one way - There should be licensing for boating. There should be speed limits for boats. Hoewever there is the Texas snake, "Don't Tread On Me" mentality so it likely won't happen.

Finally - Let he without sin cast the first stone. I break laws all the time. I jay walk to lunch as I cross the street every day. Sometimes I litter and sometimes I helm my boat over the legal limit for driving - there is no drunk boating limit here.

If you, your children and your parents have never broken a US law, I commend you. The answer however is not to keep locking people up.



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As a guest on the boat, Denius probably had no clue, sober or drunk, whether the boat's navigational lights were properly on, or even how to turn them on.

Further, Dinius had no oppoturnity to undertake any evasive action on account of Perdock's high rate of speed. Therefore, Dinius's drinking was not a contributory factor to the accident.

From the evidence, there was nothing Dinius could have done to avoid the accident, sober or drunk. This lack of evidence is precisely why Perdock abandoned his civil claim against Dinius and agreed to the distribution of the pooled insurance proceeds for the benefit of most everybody except Perdock.

You are not guilty of manslaughter unless you did something to cause the death. Being drunk, in itself is not enough.

Passive verbs are a little slippery: Dinius did not 'have' an accident. Perdock did.
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Old 22-10-2008, 10:17   #318
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Be careful that you don't quote evidence that may or may not be in record. .
Perdock and all the relevent parties have reached an agreement on who was responsible for the accident . They were there and apparently don't agree with your assessment.
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Old 22-10-2008, 10:36   #319
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P.S. I agree that Dinius should be charged with drinking and driving. And I believe he was so charged. I don't hear anybody complaining about that.

The problem is that Dinius was also charged with manslaughter.
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Old 22-10-2008, 11:00   #320
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And no one can say with certainty what lower rate of speed eliminates the accident
But I think we can agree that the odds of impact would have been reduced if Perdock was driving slower, and likewise the odds of injury and death would have been reduced if he had been driving slower.

This goes to the essence of what is and what is not reckless behavior.

It's very hard to argue that 40+ mph at night on a recreational body of water known to have other boaters is not reckless. Most people would agree that is reckless conduct for the very reason that the accident was so predictable. In fact, most of us would put that as a classic example of recklessness. Which is why most of us think Perdock is guilty of manslaughter.

I know that in my community I don't want that kind of conduct to be happening because the odds of injury or death are so high, and I've posted in this thread two accidents that are remarkably similar to this accident. The expectation here is that in both cases the motor boat driver will be prosecuted and convicted for manslaughter because the community here does not welcome that kind of conduct. I have zero problems with that.
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Old 22-10-2008, 11:12   #321
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I should add that I've been to an Asian country, Korea. I saw how they drove.

What I saw was virtually nobody obeying the traffic laws. But more significantly I saw virtually nobody driving recklessly either.

In terms of personal safety, the distinction is important.

Traffic laws are desiged for order and safety, but may or may not directly relate to safety.

Recklessness, by definition, is unsafe.

Ergo, it is less important to me whether a traffic law is broken (like a posted speed limit) than whether recklessness is present. Again, recklessness, by definition, is unsafe.

All traffic laws should be obeyed, but avoid recklessness above all else. If you are going to enforce traffic laws, then start first and foremost with recklessness because that's the most dangerous violation of traffic law.

For this reason I must respectfully disagree with your position that Perdock should not be charged with manslaughter. Reckless behavior is a danger to all and must be stopped. The safety of my family and friend is dependent on stopping it.
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Old 22-10-2008, 11:48   #322
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RCW 46.61.500 [Revised Code of Washington]
Reckless driving -- Penalty.
(1) Any person who drives any vehicle in willful or wanton disregard for the safety of persons or property is guilty of reckless driving.

RCW 46.61.500: Reckless driving — Penalty.

To underscore my point that reckless behavior is, by definition, unsafe behavior.
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Old 22-10-2008, 21:33   #323
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Quote:
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RCW 46.61.500 [Revised Code of Washington]
Reckless driving -- Penalty.
(1) Any person who drives any vehicle in willful or wanton disregard for the safety of persons or property is guilty of reckless driving.

RCW 46.61.500: Reckless driving — Penalty.

To underscore my point that reckless behavior is, by definition, unsafe behavior.
John,

Not trying to frustrate you but unfortunately in my opinion "recklessness" requires a standard. And a standard of recklesseness is impossible to have. No one could prove that Perdock had a disregard for the safety of the sailboaters. He didn't see them, we presume, otherwise he would have avoided them.

The test for recklessness then has to become the accident. It is a useless standard at that point. If you have an accident you are reckless.

In a couple of your other posts you state that, "I know that in my community I do not want that..."

So the test becomes your personal test and I suggest that you can't have a test based on John's desires or some undefined test of recklessness.

Also -

"It's very hard to argue that 40+ mph at night on a recreational body of water known to have other boaters is not reckless."

Why is that? How many miles of trouble free boating at night by powerboaters at 30-40+ have occured before this fatal accident?

And if 40+ mph is reckless why has it been allowed and been the norm on that lake forever?

And if I am going to sail a boat in becalmed conditions, at night, drunk knowing, that there are high speed boaters out there, would I not want to get an auxiliary engine started, get more lighting on my boat and get out of the middle of the lake - Not doing so doesn't seem to pass my test for reckless disregard for the safety of myself and my crew Or maybe my judgement was impaired because I was drunk, or maybe I wasn't the master of the ship and couldn't make that decision because the master who wsa downstairs getting more alcohol was also decision impaired because he was also drunk. Remember - these guys were over twice the legal limit.

If Perdock were to be held to as spurious a test as recklessness as you've defined it, that would be patently unfair.

If the community does not want high speed boating at night the community should set speed limits for the lake and in fact in my opinion there should be and should have been speed limits for all recreational boating areas.

Final thought and I will rest - It seems that several insurance companies are paying so there must be some shared responsibility in terms of the civil suit.

I think the civil outcome is very logical - because the civil settlement is financially driven not politically driven. The insurance comanies do not want to spend the next 5 years in court over this unlike the State of California.

And regardless of what you and I think the civil settlement has no bearing on guilt or innocence of Perdock or Dinius. They don't have to follow the rules of law. They just have to settle the claims.
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Old 22-10-2008, 22:08   #324
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And regardless of what you and I think the civil settlement has no bearing on guilt or innocence of Perdock or Dinius. They don't have to follow the rules of law. They just have to settle the claims.
I beg to differ. They do have to follow the rule of law. They are just allowed a more subjective approach to the determination of proximate cause. If you ask the question was speed the proximate cause of the accident, the answer is subjective. No one can say with absolute certainty that the accident would not have happened if the boat had been traveling 10 mph slower. We can say for certain that this would have put both vessels in a different location. We can say for certain that this would have allowed more time for each vessel to react. We can not say that either vessel would have seen the other. We can not say that either vessel would have taken the correct action. This in mind, the court must decide the probability of the speed of the boat impacting these factors, and the likelyhood of each operater taking the appropriate action. For this, a standard must be established. What would the average person do? The average person, traveling at a slower rate of speed, would have seen the sail boat. The average person, traveling at a slower rate of speed, would have taken evasive action, and had time to respond. We can only speculate, based on the outcome, that given the speed of the boat, there was not sufficient time to react, but there is no way to establish this as fact. A court can only make a determination that the average person would have reacted in a specific way. That determination is what binds the court to the rule of law. If it is determined that an average person would have avoided the accident if the boat was traveling at a slower speed, then the proximate cause of the accident can be identified as unsafe speed. There is a statute for unsafe speed. The outcome is based on that statute.
Just my opinion.
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Old 22-10-2008, 22:11   #325
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And you ignore any discussion regarding the reckless culpability of a drunken master operating his becalmed sailboat on a busy lake at night with full knowledge that high speed powerboats frequently use this busy recreational waterway.

OK - I get it. No need to discuss further - LOL....
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Old 22-10-2008, 22:18   #326
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Not ignoring it at all. I have said it so many times, the keys to type it are worn out.
New keyboard
Would the accident have occurred if the helmsman, or master of the sailboat had not been intoxicated, but still on the water, and under sail? (I am deliberately not going into the issue of the lights).
We have a saying in my business. Just because the car was parked in a red zone, doesn't mean you are not at fault for hitting it.
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Old 22-10-2008, 22:32   #327
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Not ignoring it at all. I have said it so many times, the keys to type it are worn out.
New keyboard

Yeah - We have pretty muched flogged this to death.

I guess we'll just have to wait for the acquittal. Then we can cry about all the tax dollars spent to accomplish nothing.

Also all the gnashing of teeth in the world isn't going to get Perdock charged at this point. That boat has sailed.
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Old 23-10-2008, 10:37   #328
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John,
unfortunately in my opinion "recklessness" requires a standard. And a standard of recklesseness is impossible to have.
Recklessness is unsafe behavior. Determining unsafe behavior is not an impossible task. Everybody does it all the time. People are quite capable of determining what behavior is most likely to bring about injury or death. The survival of the species depends on it.

You personally avoid extremely unsafe situations with respect to your children because you care for their safety. Recklessness is the failure to do that. You know exactly what I mean.

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John,
Not trying to frustrate you but.
Very Freudian, me thinks.
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Old 23-10-2008, 19:09   #329
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You personally avoid extremely unsafe situations with respect to your children because you care for their safety. Recklessness is the failure to do that. You know exactly what I mean.
The issue is with the the "extremely unsafe" part. This is too subjective. What about moderately unsafe, somehat unsafe or just plain old unsafe?

You eventually end up with "Unsafe at any Speed" which is the foundation of much of this baloney.

If you buy in to Mr. Nader's view, anytime someone is injured there is fault. Carrying that further we have a situation where there is fault there is crime. Any we convict criminals so everyone ends up in jail.

How many school sports programs are extinct because the school cannot afford insurance? Pathetic.

Unfortunately I don't really know "exactly" what you mean, and likely as it stays somewhat messy we will continue to have inconsistency in the courts.

I certainly don't want to endanger my child, but I won't make him a bubble boy either. He sails Picos, solo, in a busy shipping channel. He jumps off our pier into 2 knot currents. He rides the banana boat standing on top of it. He cycles without a helmet. And sometimes he and his mates have a bonfire on the beach at night and throw fireworks in.

Other parents of 11 year olds brought their boys to his birthday party at the club. Some freaked about their kids jumping off the pier and some would not allow their kids to sail dinghies in front of the club - <sigh> - a new generation of fearful, cubical based, prairie dogs being generated.

I probably have a way different standard of recklessness in this regard than others. I know it's different than my wife's
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Old 24-10-2008, 04:50   #330
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Juries

Hmm.... with so many posts about what happened, what didn't happen, who did what, what rules/laws apply, what definitions are involved, who should be punished and for what etc etc, I can see why the British justice system was set up.

Haul some suspected wrongdoer before a court, let both sides toss in their evidence and argument, have a learned judge preside over the proceeding to ensure its all kosher and then let 12 peers make the final decision on behalf of the whole community.

Yes I know this system can be abused as much as any system and certainly isn't perfect but somehow it makes a lot of plain sense (to me at least).

The only thing missing in this instance is that one of the suspected wrongdoers hasn't being hauled into the courtroom. Now that smells a bit off IMO.
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