Pennsylvania Injury Law Report : Pennsylvania Personal Injury Lawyer & Attorney : Stuart Carpey Law Firm : Auto Accidents & Product Liability : Pennsylvania Injury Law Report

How do you prove who is responsible for the Delaware River duck boat tour accident?

Just like car accident cases, the evaluation of liability in boating accident cases is determined by looking at the “rules of the road.” The rules are technically called the Federal Inland Navigation Rules. They are Coast Guard navigation regulations, and all boat captains are required to follow them. If they don’t, bad things happen, as did last week in Philadelphia.

By now most of the country has heard about the collision between a “Ride The Ducks” duck boat and a barge on The Delaware River. A tugboat was pushing an empty barge and the duck boat was on the blind side of the barge.

I’ve been on the Ride The Ducks boat with my wife and three kids. We also did the same tour in Boston. I never considered that a collision between the boats we were on and a larger vessel could have occurred. The duck boats were landing craft for the Allied troops in World War II. They had done battle against the Nazis during D-Day and the Japanese at Iwo Jima. How could they not be safe? But tragedy happened, and now two Hungarian teenagers, visiting Philadelphia on a group trip, are dead. Right here in Philadelphia.

Who’s at fault? Certainly the tug boat operator, and the company that operates the tug. It’s inconceivable that the tug boat would not have a vantage point on all sides so the operator could see what happening on the river or so that an assistant could report to him. The rules of the road require that the tugboat pushing the barge have a proper lookout.

The duck boat had a small fire on the boat and was disabled in the water for at least fifteen minutes. It did not issue a distress call to the Coast Guard. It did call the home base of the tour company and was waiting for assistance. Here are just a few questions to which I'd like to know the answers.

• What caused the fire?
• What do the maintenance and inspection records reveal for the boat?
• Why was there no distress call sent to the Coast Guard by the captain of the duck boat?
• Why did the duck boat captain wait until the last few seconds when the barge was bearing down on the duck boat to tell passengers to jump into the water?
• Why not get them out sooner?
• Were there sufficient numbers of accessible and usable life vests?
• Was enough training provided to the captain and his assistant of the duck boat insofar as this type of incident?
• Why wasn’t the air horn on the duck boat operational?
• What sort of assistance did the tugboat captain have in terms of lookout on the tugboat or the barge?
• Was the tugboat captain monitoring Channel 13, the ship to ship channel, or Channel 16, the emergency contact channel?

The rules of the road apply to all water ways. As an avid kayaker in the back bays of South Jersey, I frequently see small boats and jet skis in the areas where I kayak. I can tell by how those craft are operated that the captain of the boat or operator of the jet ski has no idea of his or her legal obligations on the water.

Philadelphia’s duck boat tragedy will now set the standard for all duck boat tours around the country. New procedures will have to be place before these tours begin again. This, from a Philadelphia Inquirer article written by David O’Reilly and Linda Loyd sums up the scenario:

A vessel stalled in the middle of that teeming shipping channel is the stuff of maritime nightmares. It is also a scenario envisioned by a former Coast Guard commandant a decade ago when he barred duck-craft tours from the port. "I didn't allow it on my watch, because I was concerned about an incident like this possibly happening," said Capt. Gregory F. Adams, superintendent of the Port of Philadelphia from 1998 to 2002. He had ridden the amphibious sightseeing vehicles in Baltimore, he said. "It's an entirely different operation there. They are in more protected waters outside of commercial navigation areas. Each port is different." At Penn's Landing, he said, "the whole main channel of the Delaware runs right along the Pennsylvania side of the river. It just didn't seem like a good idea."

 

• Email This
• Print
• Comments
• Trackbacks
• Share Link

Thomas Killino, a former assistant district attorney in Luzerne County, testified last week in front of a special panel investigating judicial corruption in Luzerne County on the part of former Judges Mark A. Ciavarella and Michael T. Conahan. I’ve reported on the goings on in Luzerne County before.

This is from an article written by Philadelphia Inquirer reporter William Ecenbarger. This is what Killino said and how members of the investigating panel responded to what he said.

"We trusted the judge," said Thomas Killino, a former assistant district attorney when asked why he did not challenge many of Ciavarella's actions, including illegally obtaining forms from young defendants waiving their right to a lawyer. Much of the questioning centered on why prosecutors, probation officers, and public defenders did not challenge Ciavarella's failure to explain to defendants the consequences of waiving their right to counsel and of pleading guilty. This process, called a colloquy, is required by state court rules.

"Did it ever bother you that there was no colloquy?" asked George D. Mosee, head of the juvenile division of the Philadelphia District Attorney's Office.

"It was a fast-paced environment," Killino replied. "This was the established practice of the court. Everyone went along with it."

Mosee, who oversees the prosecution of about 10,000 juveniles a year, added: "I've never prosecuted a child who didn't have an attorney. How do you handle it?"

Killino said he was told that the defendants had signed written waivers outside the courtroom and that he believed those overrode the requirement for a colloquy in open court to determine that the juveniles understood that they had a right to an attorney.

When Killino confirmed estimates that more than half the child defendants who appeared before Ciavarella did not have attorneys, Judge Dwayne D. Woodruff asked him if he had ever read the juvenile law that required them to have counsel.

Killino said he had read parts of the law but not the entire law.

Later, Woodruff said he had heard about 4,000 juvenile cases and every defendant had a lawyer. Judge John C. Uhler asked Killino if there were instances when defendants without lawyers were sentenced without ever speaking in their own defense. Killino said there were, and that in those cases Ciavarella would move right on to sentencing in a matter of minutes. Later, Uhler said that in his 20 years as a juvenile court judge, no defendant had ever appeared before him without an attorney.

Killino testified that he and other prosecutors did not have enough information available to them to determine whether a sentence from Ciavarella was unduly harsh.

"Didn't you want to know?" demanded Jason D. Legg, a commission member who is a prosecutor from rural Susquehanna County. "It was not part of our purview," said Killino.

Later, Legg said he prosecutes hundreds of juveniles every year and they always have legal representation.  

How does this apply to your lawyer in charge of your personal injury case? You should question your lawyer periodically throughout the pre-litigation period of your case, as the case is litigated (meaning after suit is filed) and pre trial. Ask your lawyer pointed questions about the facts of the case. Is he or she familiar with your case when you speak to your lawyer on the phone. Has your lawyer fully and completely read the laws that apply to your case?

Mr. Killino was in a position of power. Maybe not to the same degree as the judges who uniformly sentenced the juveniles who appeared in their courtrooms. Still, as an ADA, Killino owed an obligation not just to the juveniles he was prosecuting, but to the judicial system as well. His client was Luzerne County and its citizens. The duty he owed to his client was to read and know the laws that applied to juveniles being sentenced without legal counsel. The fact that Killino was familiar with the law but not completely versed in the law is inexcusable.

He, and others who appeared in Ciavarella’s and Conahan’s courtrooms, did not want to rock the boat. It’s hard to be a whistleblower. But here there was no excuse.

Your personal injury lawyer should provide the benefit of his or her expertise, value to you in the handling of your case, leading to a satisfactory result and a solution to your legal problem. To do so your personal injury lawyer has to be able to provide you answers to your questions. He has to assist you in the decision making process in your case. If your lawyer can't do that, then get yourself a new lawyer. If your lawyer is familiar with the laws that apply to your case but is not completed versed in those laws and the updates to the laws that apply to your case, get yourself a new lawyer.

Just because there is a fancy degree on the wall of your lawyer's office doesn't mean he's informed. Thomas Killino is a good example of that.
 

• Email This
• Print
• Comments
• Trackbacks
• Share Link

This is one crazy story which recently received national attention. John Wagner, 24 and Leslie Pope, 22, were charged with theft after they refused to pay a $16.35 gratuity automatically added to the bill by the Lehigh Pub in Bethlehem, Pennsylvania.

The couple, dining with a group of friends, claimed they waited more than an hour for their meal, and had to go to the bar to get  drinks refilled and pick up their own silverware. When they left without paying the tip, the restaurant  manager called the police who arrested the couple. The Northampton County District Attorney later dropped the charges.

There are many lessons here. First, terrible marketing on behalf of the restaurant. That's a given. Who would ever want to go to that restaurant?

Having said that, it can be tough as a waiter or waitress. Having waited tables in college, I know that sometimes bad service is a direct result of what's going on in the kitchen. Nevertheless, the waiter or waitress is the one that is penalized if a meal comes out slow from the kitchen. It sounds like there was more than that going on in this story however.

All I know is that as a personal injury attorney, I don't get  paid in gratuities. In fact, I don't get paid unless I obtain a successful settlement for my client, or try the case to verdict and win. That is the nature of the contingency fee relationship I have with my clients. In addition, I have to pay all of the costs to finance to prosecution of the case!

I wonder how the restaurant industry would do if customers decided at the end of each meal whether to pay for the meal itself, let alone the tip?

• Email This
• Print
• Comments
• Trackbacks
• Share Link

Wolf Blitzer is a professional interviewer. He has  prepared questions.  He listens to the response that  he gets to his questions and uses the response to formulate his next question. That's what he did when he interviewed Richard Heene, the Colorado father of  6 year old Falcon.  Wolf was exploring the issue of whether the report by the Heenes that their son was trapped in a balloon was all a publicity stunt. Falcon was found hiding in the family's garage last Thursday after the family reported that they feared he had disappeared and was floating around in a homemade helium balloon, flying 50 miles through the sky.

Watch  Mr. Heene squirm when he is asked to comment on his son having just said on camera "you guys said that we did this for the show. " The boy was answering the question raised by Wolf of why he just did not come out of the garage attic when he heard his family calling for him. The father barely looks at the camera. His wife also looks a bit worried.

Litigators are professional interviewers, like Wolf Blitzer. They come prepared. They have background on the person they are deposing. I'm quite sure Wolf had background on the Heenes. Lawyers who litigate for a living are like electronic lie detectors. They can smell when someone is not being truthful.

Now the Heenes are being charged with crimes related to what appear to be false reports about their son's supposed flight on a hot air balloon. They may be completely innocent.  Time will tell. Right now it sure doesn't look good for them. But you don't have to be an expert in body language to see that the Heenes were unsure of themselves and worried about what their son had said and what they had said, or might say, on camera. They were being scrutinized. Not unlike what happens at a deposition.

Lesson here? Tell the truth at your deposition.

• Email This
• Print
• Comments (1)
• Trackbacks
• Share Link