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  • Recreational Boating

Recreational Boating

Maritime law, also known as admiralty law, is the body of law that usually governs incidents occurring on the ocean and in many other bodies of water, like lakes and rivers. The Constitution, as well as some more recent legislation, has given the federal government control over admiralty and maritime issues [1]. Cases relating to recreational boating are only governed by Texas state law when federal admiralty law does not apply.

The facts of the case must meet two requirements for admiralty law to apply: maritime situs and maritime nexus. Historically, maritime situs was the only requirement; if the incident occurred on “navigable waters,” it was governed by federal admiralty law. Navigable waters are bodies of water that could be used for interstate or international commercial transportation, even if they are not actually used for that purpose. The situs requirement can be met by a docked boat that is floating on navigable waters, but cannot be met by incidents that take place on piers, bridges, or other extensions of land.

Courts decided, however, that the situs requirement was too broad on its own, and that admiralty law should not apply to accidents completely unrelated to maritime commerce. So, in addition to the situs requirement, they began to require maritime nexus: a relationship to “traditional maritime activity.” This phrase caused a lot of confusion about when admiralty law applies, especially for recreational boaters. In the 1982 case Foremost Ins. Co. v. Richardson [2], the United States Supreme Court helped clear things up. The Court ruled that recreational boats can in fact meet the nexus requirement, because even if completely unrelated to commerce, their presence on navigable waters can still affect commerce. Using the principles of Foremost, courts have held that maritime nexus can also be met in cases involving just one recreational boat, or even a recreational boat and a fixed object. It is unclear, though, whether admiralty law applies to incidents involving swimmers and water skiers.

When admiralty law applies:

Federal law can be very different from state law, and admiralty law has some quirks that are even unusual for federal law. Significantly, under federal admiralty law, there is no right to a jury trial [3]. For this reason, among others, sometimes parties choose to forgo admiralty law and file their case in state court. There are however, some unique aspects of admiralty law that can make filing in federal court more appealing.

In a boating injury case, the plaintiff’s lawyer is responsible for showing the defendant’s negligence caused the plaintiff’s injury. For a broader discussion of negligence in general, please see negligence articles. Proving negligence involves proving the defendant breached a duty they owed, and proving that breach was the proximate cause of an injury.

Certain situations, however, shift the burden of proof from the plaintiff to the defendant. For example, federal law lays out “rules of the road” that vessels, commercial or recreational, must follow [4]. The rules are very similar to those for automobiles; vessel operators are required to keep a proper lookout and practice general safe procedures like maintaining a reasonable speed. Violating one of the rules of the road is the maritime version of negligence per se, and invokes the Pennsylvania rule (except for in special circumstances). The Pennsylvania rule shifts the burden of proof to the defendant, who now must show that he was not a cause of the plaintiff’s injury [5]. The Pennsylvania rule is an example of a presumption of fault. A presumption of fault also arises when a moving vessel hits a stationary vessel or object (an “allision”, as opposed to a collision) or causes a large wake that results in injury.

Defenses and Damages

One type of defense involves asserting the negligence of the injured party. Federal admiralty law uses a system of pure comparative negligence. If the court finds the injured party’s negligence was also a cause of their injury, the court will reduce their damages by the percentage of their own responsibility. Even if a court finds the plaintiff was 99% responsible for their own injury, the defendant can still be held responsible for 1%. This is an important difference from Texas state law (see below), which bars recovery if the plaintiff’s fault is more than 50%.

Another type of defense to negligence is an “inevitable accident” defense. In federal admiralty law, the defendant must show that the collision was 1) caused exclusively by an act of God, and 2) could not have been prevented by “human skill and precaution and a proper display of nautical skill [6].” This is a difficult standard for a defendant to prove. A third type of defense involves proving a superseding cause of the accident. A superseding cause is something that occurs after the defendant’s act of negligence, and breaks the chain of causation connecting the defendant’ negligence with the plaintiff’s injury. Proving an inevitable accident or superseding cause completely absolves the defendant of liability.

Unusual Remedy: In Rem

Federal maritime law allows for an interesting remedy in which a lien may be placed on a vessel itself by way of an in rem proceeding that names the vessel as the defendant.

Wrongful Death

The federal statute known as the Death on the High Seas Act governs deaths that result from injuries occurring outside US territorial waters (which extend to 3 nautical miles offshore). Within territorial waters is usually governed by state statutes. The Supreme Court has also recognized a common law wrongful death actions in situations that fall outside of DOHSA in the 1970 case Moragne v. States Marine Law [7].

When there is no federal jurisdiction:

When a boating injury case meets the requirements for federal maritime law, the plaintiff may choose to file their case in either federal or state court. Even if filed in state court, the substantive federal maritime law applies unless waived by the parties. If waived, or if the case does not meet the requirements for federal maritime law, then Texas state law applies. Notably, the federal “rules of the road” are applied by Texas statute to “all public waters of this state to the extent they are applicable [8]”, so the substantive law is practically the same (except for case law, which there is very little of). To violate one of these statutes is negligence per se. Texas statutes also require boats to carry specific equipment, depending on their class of vessel [9]. Certain statutes in the Texas Penal Code are relevant to boating accidents as well. For example, it is an offense to operate a watercraft while intoxicated [10]. In the few examples of case law, Texas courts tend to use car accident cases as precedent for recreational boating accidents, and in general the same defenses apply. See Motor Vehicle article for more information.


A case that falls under Texas state law will allocate damages using a system of modified comparative negligence, compared to federal maritime law’s pure comparative negligence. Texas’s modified comparative negligence system means the plaintiff cannot recover any damages if they are more than 50% responsible for their own injury. See Comparative Negligence article for a more in depth explanation. So, in state court the plaintiff might not be able to recover damages that they would in federal court.

Post-Accident Duty

Whether a case falls under federal maritime or state law, it’s important to note that statutes impose a duty on the operator of a boat involved in an accident. Nearly identical to the federal statute, the Texas statute requires the operator to do the following [11]:

  1. render to other persons affected such assistance as may be practicable and necessary in order to save them from or minimize any danger insofar as he can do so without serious danger to his own vessel, crew, and passengers; and
  2. give his name, address, and identification of his vessel in writing to any person injured and to the owner of any property damaged in the collision, accident, or other casualty.

Whether or not the accident is your fault, if you are involved in a boating accident and fail to fulfil the above duties, you could be liable for any damages sustained as a result of your breach.

Cases stemming from recreational boating accidents can be very complex. If you’re injured in an accident, it’s important to consult with an attorney experienced in both maritime and personal injury law.


Federal admiralty law is very different than state law, and determining when it applies can be quite difficult. To further complicate things, in certain circumstances the parties to a lawsuit can choose whether the case will be heard by a federal or a state court.

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