Branson Duck Boat Cases Face 167-Year-Old Liability Torpedo

Ripley Entertainment Inc. and Ride the Ducks Branson LLC are likely to use a 167-year-old admiralty law in an effort to torpedo wrongful death litigation stemming from the July 19 sinking of an amphibious duck boat in Missouri.

Families of some of the 17 drowning victims, which included nine members of one family, say the refurbished World War II-era military vessel was unsafe and never should have been driven into Table Rock Lake as a severe thunderstorm approached.

But their lawsuits, at least one of which asks for more than $100 million in damages, will have to survive a federal law enacted in 1851 to spur investment in commercial steamships.

The Shipowner’s Limitation of Liability Act limits a shipowner’s liability after a sinking to the salvage value of the vessel and its freight.

The law’s protection, however, isn’t absolute. The vessel must have been traveling on a navigable waterway and the shipowner must show it had no knowledge of a defect that made the ship unseaworthy.

Ripley has a strong argument that the lake, a man-made recreation area that straddles the borders of Missouri and Arkansas, meets the navigability criteria, admiralty lawyers tell Bloomberg Law.

But any assertion by Ripley that it had no knowledge of the boat’s lack of seaworthiness will be met by evidence of duck boats’ checkered safety record, their lack of buoyancy, and their susceptibility to swamping in rough water, the attorneys say.

The vessels’ low gunwales and add-on, heavy canopies—designed to extend the touring season—also make tours risky even for life preserver-wearing passengers who can be trapped when the boats sink, they say.

Adding Up the Fatalities

Statistics bear out those observations. Forty-three people have died, both in the water and on land, in duck boat-related incidents since 1999 including one in neighboring Arkansas where 13 people drowned.

“My experience is that anytime a maritime defendant has the ability to raise the limitation of liability act, they do,” said Daniel Rose, of Kriendler & Kriendler LLP in New York City. “It would have the effect of completely gutting the claims.”

Rose, who isn’t involved in the litigation, has represented plaintiffs in maritime disaster cases, including litigation stemming from a tour boat that capsized on Lake George, N.Y., in 2005.

But the 1851 law “probably won’t be successful” in the Branson cases, Rose said, because of the high-profile nature of the tragedy and the “unfairness” of the admiralty statute to the grief-stricken families.

Maritime lawyer Christopher Abel, of Willcox & Savage in Norfolk, Va., said Ripley may argue the root cause of the sinking wasn’t a vessel defect but the duck boat captain’s decision to head into Table Rock Lake during a severe thunderstorm warning.

“But the plaintiffs will say the vessel wasn’t seaworthy and that the owner knew it,” he said.

Abel, formerly a commissioned officer and law specialist in the U.S. Coast Guard, represents maritime clients in insurance defense and employment litigation. He also teaches maritime law at William & Mary University’s Marshall-Wythe Law School in Williamsburg, Va.

Orlando, Florida.-based Ripley and Ride the Ducks Branson declined to comment on the litigation or the safety of its duck boats, citing the pending National Transportation Safety Board investigation.

Ride the Ducks said in a July 25 Facebook post, however, that it is cooperating with the federal safety agency.

“We are offering to pay for all related medical bills and funeral expenses, return all personal items from the rescue scene, and assist with any related travel or accommodations that will help the families in their time of need,” the company said in the post.

Navigable? Probably. Seaworthy? Less Likely

The families in the Branson sinking may be hard-pressed to argue Table Rock Lake isn’t a “navigable waterway” subject to the admiralty law despite a 1983 Eighth Circuit opinion that it isn’t.

“As it is, the fact that the Coast Guard inspected the DUKW in this case, licensed its operator, and regulated its operation strongly suggests that Uncle Sam is convinced that Table Rock Lake is navigable,” Abel said.

The NTSB also listed the lake as a “navigable waterway” in its August 6 preliminary report.

“Ultimately it is up the courts to decide whether Table Rock Lake is subject to admiralty jurisdiction, but if I was a betting man, I’d put my money on that answer to that question–today, at least–is yes,” Abel said.

The Branson plaintiffs are likely to have a much easier time, however, proving Ripley knew the boat that sank was unseaworthy.

Duck boats—whether converted military vehicles known as DUKWs or replicas—have a poor safety record, a factor that will play into both the application of the maritime law and the wrongful death cases, Abel and other lawyers said.

After 13 people drowned in 1999 during a tour of an Arkansas lake, the NTSB recommended that duck boat operators add reserve bouyancy and remove canopies that can trap passengers as the boat sinks.

Here, Ripley failed to heed that recommendation, and “that, in and of itself, made the vessel unseaworthy,” attorney Robert Mongeluzzi, of Saltz Mongeluzzi Barrett & Bendesky PC in Philadelphia said.

Mongeluzzi represents John Coleman and other plaintiffs in the Branson litigationcurrently pending in the U.S. District Court for the Western District of Missouri.

The 2002 NTSB recommendation, and the swamping risks posed by the severe thunderstorm warning, work against Ripley and Ride the Ducks Branson, said Mongeluzzi, who added that “this is not a case of a first-time event where they could say they didn’t know.”

The traditional “owner at the helm” rule also makes it difficult for shipowners to argue they had no knowledge of a vessel they were aboard, though that question is complicated when a corporation owns a vessel, Abel said.

Yet another complicating factor is how far up the corporate chain that knowledge of a defect can be established.

“Much of the litigation, especially for corporate owners, is how much a role the owner played,” Abel said.

The litigation will likely delve further into those questions, Abel said. “That’s what the lawyers get paid to do.”

If Ripley invokes the 1851 admiralty law, it will file its own separate case in federal court, where all disaster-related claims are assessed under the liability limitation law. If the limitation of liability action fails, the tort cases may proceed, the lawyers said.

Tourist Trap to Avoid? Maybe

In the meantime, and beyond the courtroom, estimates are that more than 100 duck boats operate in the U.S., including Seattle, Boston, Philadelphia, Washington, and other popular vacation destinations.

As for whether the duck boats are safe to ride, Mongeluzzi said that tourists should ask whether a boat has a canopy and extra bouyancy before they embark on a cruise.

If the answer is “yes” to the canopy and “no” to the bouyancy, “they should clearly stay away,” he said.

Rose had a simpler suggestion: “Make sure the weather is good.”

To contact the reporter on this story: Steven M. Sellers in Washington at ssellers@bloomberglaw.com

To contact the editor responsible for this story: Steven Patrick at spatrick@bloomberglaw.com