NY Clear in Sinking of Lake George Tour Boat

     ALBANY, N.Y. (CN) – New York does not have to face claims that a lax inspection caused a tour boat to capsize on Lake George, killing 20 tourists, the state high court ruled.
     The tragedy occurred during a fall “leaf-peeping” excursion on the upstate lake in 2005, involving mostly elderly passengers from Michigan and Ohio. Twenty of the 47 tourists died when the Ethan Allen ship rolled and sank, and the remaining passengers suffered serious injuries.
     The National Transportation Safety Board said that the accident likely occurred because state regulators failed to reassess the boat’s stability after its canvas canopy was replaced with a wooden one in 1989.
     Investigators also found the boat carried many more passengers than it should have.
     As a public vessel, an inspector appointed by the state Office of Parks, Recreation and Historic Preservation was responsible for issuing the certificate that, among other things, set the passenger capacity for the Ethan Allen.
     Since 1979, when the parks agency began certifying the boat, the passenger limit was constantly set at 48.
     That number dates to the first inspection of the vessel by the U.S. Coast Guard after the boat was built in 1964. The capacity stayed at 48 even after the 1989 canopy modification.
     Survivors of the 2005 wreck filed suit along with the representatives of those killed, claiming that the state should be held liable because inspectors failed to set a safe passenger limit for the boat.
     New York countered that sovereign immunity shielded it from claims.
     Though the Court of Claims preserved the state’s immunity defense in 2010, the Appellate Division of New York Supreme Court sent the case on to the state’s highest judicial authority, the Court of Appeals, after finding that the inspectors had not exercised any discretion by independently verifying the boat’s capacity.
     Describing the accident as a “tragic capsizing,” the Court of Appeals reversed Thursday.
     State navigation law requires that boats be inspected for safety – including determining how many passengers they can carry, “however, these statutory obligations do not create a special duty of care owed by the state to particular passengers,” Chief Judge Jonathan Lippman wrote for the unanimous court.
     Several state inspectors testified they did not independently verify the boat’s passenger capacity by conducting stability tests, “but rather relied on the number certified from the previous year,” Lippman wrote.
     One inspector called the Coast Guard number “gospel.”
     Since the accident, New York has increased the average weight per passenger from 140 pounds to 174 pounds in calculating capacity, the court said. The lower number dates to 1950s use by the Coast Guard.
     Quoting from a 2009 opinion, Lippman wrote that “it is well settled” that the state “is not liable for the negligent performance of a governmental function unless there existed ‘a special duty to the injured person, in contrast to a general duty owed to the public.'”
     Inspections of public vessels may constitute a governmental function, but they “are akin to inspections conducted by a municipality when issuing certificates of occupancy or determining compliance with fire and safety codes,” the ruling states.
     “In the absence of some special relationship creating a duty to exercise care for the benefit of particular individuals, liability may not be imposed on a municipality for failure to enforce a statute or regulation,” Lippman wrote, quoting precedent.
     He also noted that “recognizing a private right of action would be incompatible with the legislative design.” State navigation law “does not provide for governmental tort liability, but instead for fines and criminal penalties to be imposed upon vessel owners and operators,” the ruling states.
     When the state Legislature amended navigation law in response to the accident, “it imposed additional safety standards and enhanced certain penalties, but still did not provide for a private right of action,” he said.
     Though the decision means that “the victims of this disastrous wreck are essentially left without an adequate remedy,” Lippman said they might find a “modicum of relief” if public vessels are required to carry marine protection and indemnity insurance.
     State lawmakers introduced a proposal in this vein to the Assembly last year, and it is pending passage by the full Legislature.
     Andrew Bing, a deputy solicitor general, argued for the state. James Hacker, of Hacker Murphy in Latham, represented the plaintiffs, led by the family of Mary Helen Metz.

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