Upright and Afloat Newsletter - 1997

Recreational Boating: Design for Discomfort

There may be merit to designing boats to selectively create discomfort. Having analyzed the factors contributing to numerous personal injuries aboard recreational watercraft, Fisher Maritime's consultants have concluded that there is a need to stress the concept of selective and creative design for discomfort. It has been widely observed throughout the industry that passengers aboard recreational craft will sit or stand in places that were not intended to be used that way by the boat's designers. Sometimes injuries result from a passenger being in places that were not intended for them. Courts may find that the product (the boat, including its design) is "defective" if the designer and manufacturer did not anticipate reasonably foreseeable misuse -- that is, the possibility of persons seated or standing in undesirable locations.

In order to, first, reduce the likelihood of such personal injuries, and second, to have a better defense in court, the designer and manufacturer must use all reasonable mechanisms to discourage passengers from being in such undesirable locations. Warning signs near the operator's console, while necessary, are not sufficient. Additional, clearly visible warning signs at the undesirable locations should also be considered. But don't overlook the possibility of making it uncomfortable for the passenger to be there in the first place.

For example, the top of the back of bench seats across the rear of the boat can be shaped to be uncomfortable for passengers attempting to sit there while still being padded for safety. Thus persons will tend to sit in the seat rather than above the seat, but if they fall onto the back of it, they will be protected by the padding. Several manufacturers already incorporate such features in some of their models.

The aft engine cover on an inboard/outboard boat may seem to provide a suitable sundeck when the boat is anchored, but the use of it during boat operation is probably to be discouraged. Clearly visible warning signs may not be attractive, but they may prevent injuries and/or lawsuits. (We are unaware of any marketing analyses or studies which indicate that prominent and complete warning signs reduce boat sales.) A disquieting, weight-activated buzzer which sounds when persons are on the sundeck while the engine is running is a feasible deterrent to foreseeable misuse. (Similar concepts can be used on the forward seats of bow riders.) A suitable railing around the sundeck may keep errant passengers from going over the side while the boat is in operation, but the railing is not a complete substitute for keeping persons off the sundeck at such times in the first place.

Of course, none of these remedies will guarantee a lack of injuries or lawsuits, but selective and creative design for discomfort can make the boating industry a safer and thus more desirable pastime.

OFE in a Design-Build Contract -- Confusion All Around

A client shipowner needed four test-bed vessels for its specialized equipment. The general design of the vessels was not important, as long as certain vessel performance criteria were satisfied and, more importantly, as long as a pair of unusual owner-furnished equipment sets ("OFE") were incorporated and installed in a precisely-defined manner in each vessel.

Several contractors bid the job, and one received a contract. The shipowner accepted the shipyard's proposed design. The shipyard had to complete the design, incorporating the OFE. Other design criteria had to be satisfied as well, including USCG regulations.

Almost predictably -- especially after awarding the contract to the lowest bidder who left an additional 20% of the contract price lying on the table -- contract disputes arose. The shipyard claimed that because the requirements for installation of each set of OFE equipment could not be fully appreciated from the bid package, additional funds and time were needed to achieve the installations. Moreover, the shipyard contended, the eight sets of OFE arrived in varying forms -- some sets of OFE required more preassembly than others. (The organization that prepared the OFE for the shipowner worked to a different contract, and was not obligated to ship them identically.)

Fisher Maritime was retained by the shipowner to analyze the relative extents of owner and builder responsibility for the cost and schedule overruns. The matter was eventually resolved by negotiated settlement based on the Fisher Maritime analyses.

The lesson to be learned here is that the pre-contract OFE detail should be sufficient to ensure that the bidding shipyard fully appreciates all of the installation requirements. Also, varying delivery forms of eventually-identical items of OFE indicates that the OFE acquisition is not well-controlled by the owner -- a contractual weakness that can only harm the owner.

Fisher Maritime's analyses of over two dozen shipbuilding contract disputes consistently reveals that whenever there is OFE for newbuildings, there are likely to be major disputes over its form at arrival, the schedule for OFE delivery, the requirements to install it, its integration into systems and/or the associated testing requirements. For new ship construction, owners should approach the use of OFE with extreme caution. Any anticipated savings through direct acquisition may not be worth the risks of extra shipyard costs and litigation.

Asbestos in Ship Construction

Why was asbestos used in ship construction and ship repair to the extent it was and why was it used for as long as it was? Fisher Maritime was assigned to answer those questions in court testimony on behalf of defendants in multiple lawsuits. The research accomplished by Fisher Maritime and summarized by its expert witness included two significant areas.

The first research area focused on the archives of numerous governmental agencies, departments and commissions from 1934 to the present. After reviewing thousands of documents, over 500 detailed abstracts with associated key words, names and dates were prepared . This formed the primary database.

The second database developed was a detailed list of the 10,000+ ships constructed in the U.S. since 1938, with the construction standards for each being identified to determine if any use of asbestos on the ship was specified as a consequence of a governmental standard or requirement.

A key finding focused on the 1934 casualty of the Morro Castle and subsequent legislation to create ships having greater fire resistance. A second key finding was the delay in identifying the lengthy development period of asbestos-caused diseases. A third key finding was the lapse between identification of the some of the hazards created by asbestos, on one hand, and the elimination of asbestos from government-approved shipbuilding materials, on the other.