My
open letter to Ken Kurtis, in the format used in his posting on
the
Diver.net BBS in reply to an inquiry about the potential to sue a boat
if it went out in a small craft advisory. Ken posed a series of
questions
as a lawyer would ask, and concluded that the Sand Dollar had made
a decision that would be difficult to defend against. So this reply is
in
that same format; namely that of a fictional lawyer asking questions:
Mr
Kurtis, you had a trip
scheduled for the 19th of February, but canceled it on Friday
the 18th of February, based on perceived conditions, is that correct?
Mr
Kurtis, the first image below reflects the conditions on the
18th when you canceled.
Would you state the wave heights for us, please?
Mr Kurtis, now look at the second image below, and tell us the wave
conditions on the
morning of the 19th of February.
Now is it your opinion that those conditions did not warrant a boat
crossing to Catalina
or safe diving conditions?
Mr Kurtis, please look at the third image below, which is from the 20th
of February, a
day that several boats made the crossing and some favorable "trip
reports" were posted
on that same BBS. You will note that the conditions were WORSE on the
20th, is that true?
Did you suggest that any of those operators on the 20th were unsafe, or
should not have gone
out, or that they were in a bad position if they were sued?
Now please look at the fourth image below, which is from the 26th of
February. You will note
that the conditions are in fact WORSE than the 19th or 20th, yet that
trip was given a great
"trip report" on that same BBS. Do you think that operator was
irresponsible, negligent, or
that he should have canceled?
Now, please look at one last image, the fifth one below, which is the
wave conditions on the
5th of May, 2004, which I believe was "Chamber Day". Are the conditions
comparable to
those shown on the 19th?
Do you believe "Chamber Day" was unsafe, or that the boats should have
canceled due to
the Sea conditions?
Did you make any comments about any of the boats that operated on any
of those dates I
asked about, other than those you made about the Sand Dollar and their
trip on the 19th?
Would you explain what made those conditions on the 19th more
threatening than the other
dates in question?
Is it your belief that a 73 Ton vessel, CG certified for an Oceans Route (not coastal) and is
SOLAS equipped, licensed from Pt Conception to well within Mexican
waters, for a
licensed
area that exceeds 26,000 square miles, is unsafe or poses a risk to
passengers in 4-5 foot seas?
Are you aware that some boats were canceled Friday by the charterer, as
you did, and some
canceled due to insufficient passenger sign ups on an "open boat", not
due to sea conditions?
If you were to post comments now on that BBS, in light of your
knowledge as to when and
why some other boats canceled, would they be the same comments that you
in fact made?
If you discovered these facts, and had these images shown to you, and
had ample opportunity,
would you attempt to correct the opinion you expressed on a public BBS
about my client?
Mr Kurtis, are you aware that there was no "small craft advisory" on
the 19th of February?
For the record, Mr Kurtis, would you please read the definition of a
"small craft advisory"
as published on the official site of NOAA:
Small Craft Advisory
This is issued by the National Weather Service to alert small boats
to sustained (more than 2 hours) hazardous weather or sea conditions.
These conditions may be either present or forecasted. The threshold
conditions for it are usually sustained winds of 18 knots (21 mph)
(less than 18 knots in some dangerous waters) to 33 knots (38 mph)
inclusive or hazardous wave conditions (such as 4 feet or greater). In
the Great Lakes, this advisory relates to conditions within 5 nautical
miles of shore. As a result, these will be only issued in the Nearshore
Forecast. Along the coastal regions of the East Coast, Gulf of Mexico,
and West Coast, this advisory relates to conditions out to as much as
100 nautical miles of shore (coastal waters). As a result, these will
be only issued in the Coastal Marine Forecast. Mariners learning of
this advisory are urged to determine immediately the reason by turning
their radios to the latest marine broadcast. Decisions as to the degree
of the hazard will be left to the boater, based on experience and size
and type of boat. There is no legal definition for a "small craft."
Would you please read the
definition of "small craft" and "Hazardous seas" from NOAA:
Small Craft
Generally a vessel under 65 feet in length.
Small Craft Advisory for Seas\/Swell
Issued for combined seas of 7 feet or greater. (locally defined
criteria) 10 feet in Southern California waters
Now look at the images
below:
1st - Feb 18th 2nd - Feb
19th 3rd - Feb 20th 4th - Feb
26th 5th May 5th, 2005
What is it about Feb 19th
that seems to be dangerous, or different than any of the others?
Thanks for reading, I for one do not understand what point Mr
Kurtis was making. He claims
that he cancels all of his charters if there is a "small craft
advisory" (winds of 20 knots) and the
choice to do so is his. However since winds do exceed 20 knots at least
1/3 of the year, it is hard
to understand cancelation of at least 1/3 of scheduled trips. On the
other hand, few commercial
boats would think that makes sense. All boats want their passengers to
enjoy themselves, and no
reputable boat would ever knowlingly put passengers at risk.
Unfortunatly, if one goes on, or dives
in, the ocean, some days are wonderful, and some days may be rough, or
unpleasant. That is how
it is on the ocean. With the average prevailing swell of 4-6 feet, a
day with 3-5 is considered "flat".
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