Q: I own a 40-foot powerboat, and was recently returning to my slip when a gust of wind pushed me into a neighbor’s boat. The incident left a rubber scuffmark on the side of his boat, and I was prepared to accept full responsibility for the incident after we secured my boat in its slip. Unfortunately the owner of the other boat was not aboard and, since it was on an end-tie slip that was not accessible to me, it took a few days to contact him. I reported the incident to my insurance company and gave my insurance information to the owner of the other boat when we eventually spoke on the phone. My insurance company paid him $950 to buff out the scuffmark and I assumed the incident was closed. Three months later I received a citation for failing to report the accident to the State of California. At first I was annoyed by the citation, but when I appeared in court and pled guilty, I was shocked when the judge read the sentence. I had to pay a fine of $2,350.00, perform 40 hours of community service and take a Coast Guard approved boating safety class. How could such a minor offense generate such a harsh penalty?
A: Our reader shared this story with me as a precautionary tale, to warn our other readers that this could happen to anyone.
He ran afoul of California Harbors & Navigation Code (HNC) section 656(d), which requires the owner or operator of a vessel involved in an accident to “report the casualty or accident in accordance with regulations adopted by the department.” He was subjected to a substantial penalty for allegedly failing to file a report, but we’ll need to get into the regulatory weeds to see how that happened. Bear with me . . . regulatory analysis can be pretty dry.
The “department” referred to in the reporting statute is the California Division of Boating and Waterways (DBW), which operates under the umbrella of the Department of Parks and Recreation. The reporting regulations at issue here were enacted by DBW in Title 14, section 6504 of the California Code of Regulations. Specifically, section 6504(c)(2) requires anyone involved in an “occurrence” to submit a report to DBW within ten days if the incident causes more than $500 in damage or it results in the total loss of a vessel.
Our reader’s insurance company paid $950 to buff out the rubber scuffmark on his neighbor’s boat. Since this exceeded the $500 reporting threshold, our reader failed to comply with section 6504(c)(2) of the regulations, which amounted to a violation of HNC section 656.
Circling back to the Harbors and Navigation Code, section 668(b)(3) provides that violators of section 656 are “guilty of a misdemeanor and shall be punished by a fine of not more than one thousand dollars ($1,000) or imprisonment in a county jail for not more than six months, or by both that fine and imprisonment, for each violation.”
That’s a substantial penalty for failing to file a report after a minor accident, but wait! It gets worse! The $1,000 maximum fine is only a “base fine.” Anyone who has paid a fine for a speeding ticket may recall that fines in California are subjected to a “Penalty Assessment,” which will more than TRIPLE the amount of the fine!
A Penalty Assessment is an amount added to base fines or base bail on infraction, misdemeanor and felony offenses in California. The assessment is charged pursuant to Penal Code section 1464 and a variety of other statutes, and it is basically a tax that is assessed on a fine. Yes, you heard that correctly – a tax on a fine. No, I’m not kidding.
So our reader was ordered to pay a fine of $2,350 under a statute that authorizes a fine of up to $1,000 plus penalty assessment. The statute also authorizes jail time, but he was ordered to complete 40 hours of community service and complete a Coast Guard safety class in lieu of jail time.
And finally, with all of this regulatory analysis out of the way, we get to the important question. Why was our reader’s penalty so harsh? The penalty statute calls for a maximum fine and/or a maximum jail sentence. But the statute says nothing about a minimum fine or jail sentence. The judge in his case could have theoretically sent him home with a $25 fine.
Unfortunately we don’t know why the judge did what he did, since we don’t have all of the details of our reader’s case and we weren’t in court that day. But that’s not the point that he was making when he contacted me. He wanted to warn others about the need to comply with this relatively obscure regulation.
Information about the requirements for reporting a boating accident may be found on the DBW website, at dbw.ca.gov/BoaterInfo/AccBoater.aspx, and, as always, by contacting a qualified maritime attorney.
David Weil is licensed to practice law in the state of California and as such, some of the information provided in this column may not be applicable in a jurisdiction outside of California. Please note also that no two legal situations are alike, and it is impossible to provide accurate legal advice without knowing all the facts of a particular situation. Therefore, the information provided in this column should not be regarded as individual legal advice, and readers should not act upon this information without seeking the opinion of an attorney in their home state.
David Weil is the managing attorney at Weil & Associates (weilmaritime.com) in Long Beach. He is an adjunct professor of Admiralty Law at Loyola University Law School, a member of the Maritime Law Association of the United States and is former legal counsel to the California Yacht Brokers Association. If you have a maritime law question for Weil, he can be contacted at 562-438-8149 or at firstname.lastname@example.org.