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Old 08-06-2007, 17:12   #1
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An Appalling Example of California Justice . . .

It would appear, based on the following from today's 'Lectronic Latitude, that if you're at the helm, drifting in light airs in a small sailboat and are run down by a powerboater, killing a member of the sailboat's crew, you'd better find the resources necessary to obtain a good attorney. What an embarrassment for the Golden State.

Is The Wrong Man Being Charged In Last Year's Boating Death Of Lynn Thornton?

June 8 - Lake County, CA
According to reports we received last year, on the evening of April 29, 2006, Lynn Thornton of Willows died of injuries after Chief Deputy Russ Perdock of the Lake County Sheriff's Department slammed the Baja 24 powerboat he was operating into Beats Working II, the O'Day 27 sailboat Thornton was a passenger on. The sailboat was owned by her fiancÚ, Mark Weber, although Bismarck Dinius of Sacramento County was at the helm.
Apparently there were several factors that might have contributed to the tragedy, which took place around 9:30 p.m., and after Beats Working II had finished second in the Konocti Half Cup sailboat race. First of all, it appears the sailboat was not showing any running lights. Also, after the accident, owner Weber's blood alcohol level was reported to be .18, more than twice the legal limit. But neither of those things, separately or together, were an immediate cause of Thornton's death.
As is often the case on the water, speed kills. At the time of the impact, Beats Working II was apparently drifting under sail in zephyrs, while the Perdock-operated Baja 24 was allegedly traveling as fast as 40 mph (eye witness accounts vary). Many believe that the after-sunset speed limit on Clear Lake is just 5 mph, but District Attorney Jon E. Hopkins says there is no such speed limit and that there is no way to prove beyond a reasonable doubt exactly how fast Perdock was going or that his speed was the cause of the collision. We very seriously doubt that Thornton would have died had the powerboat hit the sailboat at just 5 mph, and that strongly suggests - at least to us - that Deputy Perdock's seemingly reckless operation of the motorboat was the primary cause of Thornton's death.
We don't claim to know all the facts in this case, and haven't seen any of the evidence, but what strikes us as bizarre is that today, helmsman Bismarck Dinius - but not owners Perdock or Weber - will be arraigned. He's being charged with felony Vehicular Manslaughter Involving a Vessel and misdemeanor Boating Under the Influence (his BAC was .12). According to a release by D. A. Hopkins, "Dinius was the operator of the sailboat, seated at the rudder [sic], when the powerboat collided with it." We were stunned that the D.A. apparently has no plans to charge Perdock or Weber! D.A. Hopkins explained that "California Harbors and Navigation Code provides that the 'operator' of a vessel is the person steering it. Even if the owner/skipper was telling the person at the helm what to do, none of that is taken into consideration for the definition of boating under the influence."
D.A. Hopkins sought an independent opinion in the matter - perhaps in order to avoid the appearance of impropriety - by having the California Attorney General's Office review the case to determine which charges should be filed against whom, and to determine if he should be recused from the case based upon a close working relationship with the Lake County Chief Deputy Sheriff or the Sheriff's Office in general. The California Attorney General's office didn't find any reason for the D.A. to step down and/or to turn the case over to the Attorney General for prosecution. We do. One of the investigators in the case was Tom Clements, who had recently retired as a Lieutenant with the Clear Lake Police Department! Why do we get the vibe that Lake County law enforcement is like that of the Old South in the '60s?
Like we said, we don't know all the facts but, on the surface, it sure seems to us that Deputy Perdock is the party primarily responsible for the death. A distant second in the line of responsibility would seem to be Weber, who, under maritime law (which, according to D.A. Hopkins, is considered civil law), is ultimately responsible for the safe operation of his vessel - including showing running lights after sunset. We hope that Dinius has a good lawyer, because it seems to us he's getting hung out to dry. As for the estate of Lynn Thornton, we hope it has the resources necessary to hire the best damn big city lawyer possible so they can make sure justice is seen in her death.
If you were a witness to the collision, or if you have an opinion on the case, we'd love to hear from you. Send your email to richard.
- latitude / rs
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Old 08-06-2007, 18:09   #2
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If the sailboat was drifting at night without proper lights, they would not only be responsible for the accident, but also stupid.

If they had lost their electrics and could not display lights, use horns, flares, bells and get out of the way.
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Old 08-06-2007, 18:35   #3
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Quote:
Originally Posted by CSY Man
If the sailboat was drifting at night without proper lights, they would not only be responsible for the accident, but also stupid.

If they had lost their electrics and could not display lights, use horns, flares, bells and get out of the way.
I don't disagree that the sailing party bears some responsibility in the accident, but the owner of the sailboat, aboard but not at the helm and more than 2x over the California limit for intoxication of .08, was not deemed liable in any way. As the person in command of the sailboat, its systems are his responsibility, so the non-functioning lights issue falls on him, not his friend at the helm.

What I can't help wondering is if the local DA would have charged the person at the helm of the powerboat if that person wasn't someone with whom the DA had a working relationship and wore a badge.

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Old 08-06-2007, 19:10   #4
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Good points.....and a sad story.

The only thing in my view that would predicate what is happening is if the sailboat tacked under engine power into the path of the powerboat.
Otherwise,
Nothing else seems to fit.Certainly the power boat was being operated in a irresponsible and unsafe manner that ultimately caused the death of the woman


and if you havent figured out the judicial system yet.... it's "just us" not "justice".

three kinds of justice....

Justice for the common man.
Justice for people with lots of money but no political power
Justice for people with political power AND lots of money
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Old 08-06-2007, 20:04   #5
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If the sailboat had turned their lights on, they would have a case.

The navigation lights ON if they were navigating.

If they were drifting and not navigating and not anchored, they should have used the lights for "Vessel Not Under Command". Or "Restricted in Ability to Maneuver"

I would have turned on every light on the boat, inside and outside, then have a flare gun ready to alert approaching traffic, and the radio on and ready to transmit.

Just common sense to keep people alive.

If ya are drifting out there at night with no lights...
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Old 08-06-2007, 20:26   #6
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Since determining accident liability is a part of what I do for a living, I will add my 2 cents. Simply not enough information to make a judgment.
Some questions that should be asked:
First, did either vessel take evasive action?
What were the conditions (i.e. full moon,. no moon, dusk, etc. Sunset that day was 8:04pm)
Did the power boat have running lights on?
Was the power boat going too fast for conditions?
Would a reasonable and prudent operator of either boat expect the actions of the other? (i.e. If a boat were to drop anchor in the middle of a narrow channel at night without proper lights, a reasonable and prudent operator would not expect a vessel to be anchored in that location, and the anchored vessel would be primarily at fault)
Was there a proper investigation of the helmsman to determine if, in fact, he was impaired, or only over the legal limit?

CSY, I Have to disagree with your hard line approach. Not because I feel the sail boat operator should not be responsible for his part, but because there just is not enough information to come to a conclusion.

I am not an expert in maritime law, so the following are just opinions.
As I understand it, the captain of the vessel bears the ultimate responsibility for it's operation (Just ask the captain of the Valdez)
A vessel under sail has the right of way.
Any vessel in a collision situation must take action to avoid a collision.
All vessels must keep a diligent watch (referring to the power boat).

Relating to traffic law, not maritime, California is a Pure Comparative negligence state. This means that the liability of each party can be assessed to the exact degree. There is no question the sail boat was negligent to some degree for not showing lights, but from the little information available, the power boat, bears the greater negligence in this accident. I can not say if this same rule of law applies on the water. And this would only apply to the civil liability.
As for not being able to determine the speed of the power boat. Simply not true. It does require some knowledge of structure and engineering, but a fair estimate of the speed at impact is possible. For a fatality accident, it warrants the expense.

One more thing to consider. In California, and most other states, if a vehicle is stopped on the freeway at 2am due to a mechanical failure, and has no lights on, and you run into that vehicle, you are at least primarily at fault. If a car is parked on a street corner, in a red zone, protruding into the Lane, and you hit that car while executing a turn, you are 100% at fault for that accident.
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Old 08-06-2007, 20:39   #7
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If we are going to draw conclusions, we should have at least the rules in front of us, if not all the facts.
A few excepts from the cfr's:
In determining a safe speed the following factors shall be among those taken into account:

(a) By all vessels:

The state of visibility;
The traffic density including concentrations of fishing vessels or any other vessels;
The manageability of the vessel with special reference to stopping distance and turning ability in the prevailing conditions;
At night, the presence of background light such as from shore lights or from back scatter from her own lights;
The state of wind, sea and current, and the proximity of navigational hazards;
The draft in relation to the available depth of water.

Rules in this section apply to any condition of visibility.

Rule 5

Every vessel shall at all times maintain a proper look-out by sight and hearing as well as by all available means appropriate in the prevailing circumstances and conditions so as to make a full appraisal of the situation and of the risk of collision.


RULE 8
ACTION TO AVOID COLLISION

(a) Any action taken to avoid collision shall be taken in accordance with the Rules of this Part and [Intl] shall, if the circumstances of the case admit, be positive, made in ample time and with due regard to the observance of good seamanship.

(b) Any alteration of course and/or speed to avoid collision shall, if the circumstances of the case admit, be large enough to be readily apparent to another vessel observing visually or by radar; a succession of small alterations of course and/or speed should be avoided.

(c) If there is sufficient sea room, alteration of course alone may be the most effective action to avoid a close-quarters situation provided that it is made in good time, is substantial and does not result in another close-quarters situation.

(d) Action taken to avoid collision with another vessel shall be such as to result in passing at a safe distance. The effectiveness of the action shall be carefully checked until the other vessel is finally past and clear.

(e) If necessary to avoid collision or allow more time to asses the situation, a vessel may slacken her speed or take all way off by stopping or reversing her means of propulsion.

(f)

A vessel which, by any of these rules, is required not to impede the passage or safe passage of another vessel shall, when required by the circumstances of the case, take early action to allow sufficient sea room for the safe passage of the other vessel.
A vessel required not to impede the passage or safe passage of another vessel is not relieved of this obligation if approaching the other vessel so as to involve risk of collision and shall, when taking action, have full regard to the action which may be required by the rules of this part.
A vessel, the passage of which is not to be impeded remains fully obliged to comply with the rules of this part when the two vessels are approaching one another so as to involve risk of collision.


RULE 25: SAILING VESSELS UNDERWAY AND VESSELS UNDER OARS

(a) A sailing vessel underway shall exhibit:

sidelights;
a sternlight.
(b) In a sailing vessel of less than 20 meters in length the lights prescribed in paragraph (a) of this Rule may be combined in one lantern carried at or near the top of the mast where it can best be seen.

(c) A sailing vessel underway may, in addition to the lights prescribed in paragraph (a) of this Rule, exhibit at or near the top of the mast, where they can best be seen, two all-round lights in a vertical line, the upper being red and the lower Green, but these lights shall not be exhibited in conjunction with the combined lantern permitted by paragraph (b) of this Rule.

(d)

A sailing vessel of less than 7 meters in length shall, if practicable, exhibit the lights prescribed in paragraph (a) or (b) of this Rule, but if she does not, she shall have ready at hand an electric torch or lighted lantern showing a white light which shall be exhibited in sufficient time to prevent collision.
A vessel under oars may exhibit the lights prescribed in this rule for sailing vessels, but if she does not, she shall have ready at hand an electric torch or lighted lantern showing a white light which shall be exhibited in sufficient time to prevent collision.
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Old 08-06-2007, 20:43   #8
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Quote:
A vessel under sail has the right of way.
Drifting at night with the sails up and no lights on does not give you the right of way of anything or anybody anytime.

Quote:
Any vessel in a collision situation must take action to avoid a collision.
A vessel drifting is not navigating and can not stear clear. The power boat can not stear clear as the sailboat does not display required lights and are not visible to the operator of the powerboat.

Quote:
All vessels must keep a diligent watch (referring to the power boat).
True, but that is based on other boats displaying proper lights.
There is no rules of the road that says to anticipate idiots without lights or other means of signals or communications, then keep an eye out for them.

Quote:
CSY, I Have to disagree with your hard line approach.
Not taking a hard line approach here. Whatever that is..

Just trying to stress loud and clear that it is crazy and stupid to sail or drift at night with your lights turned off.
In fact it can be deadly...

Oops, it was deadly in this case, now, lets blame the other boat as he was going too fast..
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Old 08-06-2007, 20:52   #9
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E 18
RESPONSIBILITIES BETWEEN VESSELS

Except where Rules 9, 10, and 13 otherwise require:

(a) A power-driven vessel underway shall keep out of the way of:

a vessel not under command;
a vessel restricted in her ability to maneuver;
a vessel engaged in fishing;
a sailing vessel.
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Old 08-06-2007, 20:56   #10
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And here is the clincher, see part (g)

(b) A vessel restricted in her ability to maneuver, except a vessel engaged in mineclearance operations, shall exhibit:

three all-round lights in a vertical line where they can best be seen. The highest and lowest of these lights shall be red and the middle light shall be white;
three shapes in a vertical line where they can best be seen. The highest and lowest of these shapes shall be balls and the middle one a diamond.
when making way through the water, [a masthead light or lights/ masthead lights], sidelights and a sternlight in addition to the lights prescribed in subparagraph (b)(i);
when at anchor, in addition to the lights or shapes prescribed in subparagraphs (b)(i) and (b) (ii), the light, lights, or shapes prescribed in Rule 30.

(g) Vessels of less than 12 meters in length, except those engaged in diving operations, shall not be required to exhibit the lights prescribed in this Rule
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Old 09-06-2007, 09:38   #11
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Also bear in mind that they are dealing with a MOTOR VEHICLE and BWI. California laws may very well assign criminal blame to any drunk/impaired "driver" of any motor vehicle when negligent operation (no lights) of that vehicle results in a death.

That's not unusual, nor is it unfair. The operator of any machinery, boat, car, or whatever, needs to be held responsible (usually *partially* responsible) when their actions play a role in causing a death.

I'd assume the press report is, as usual, missing half the details and mildly distorting the rest.
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Old 09-06-2007, 09:49   #12
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OTOH, an O'Day 27 has a 34' high mast. If the boat had her sails up, it would take a very dark night indeed before most people driving a highly maneuverable 24' power boat would run into it.
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Old 09-06-2007, 10:09   #13
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California laws may very well assign criminal blame to any drunk/impaired "driver" of any motor vehicle when negligent operation (no lights) of that vehicle results in a death.
Exactlly!!

And look where Paris Hilton is now!! Just because she is rich does not mean that she can drive while intoxicated. Nor should anybody...PERIOD!!

If anybody who drinks. And knows that they will not be able to operate a vehicle. Wheter that be a car or boat. Should limit their drinking. Find a place to sleep it off. If underway. They should only drink a bit. But not alot. Especially near coastal areas, due to traffic.
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Old 09-06-2007, 10:12   #14
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You do the crime. You do the time. Paris Hilton goes back to jail.
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Old 09-06-2007, 11:25   #15
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Lets keep on topic .. this is about a boating incident, not paris.
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