Vol. 73, No. 6, June 2000

Wisconsin's Boating Rules of the Road

Despite the limited number of Wisconsin Boating Rules of the Road, one can thoroughly analyze a boating accident by using the federal rules and their expansive court interpretations. Read how to chart such a course.

by Carlyle H. Whipple

n elderly couple is fishing on Lake Mendota in the early afternoon of Labor Day. Their 16-foot boat is propelled by a 25-horsepower outboard motor. While traveling close to shore, the boat collides with an unused dock causing the wife to be thrown overboard. The husband operator, while trying to rescue his wife, falls overboard and drowns. The boat continues to operate crewless with the propeller causing injury to the swimming wife. No one was wearing a life jacket.

The scenario above is not an unusual recreational boating accident. In such a situation, attorneys involved in the case must determine what are the significant facts, and the relative fault of the boat operator, passenger, and dock owner using Wisconsin boating law. In order to conduct a fruitful inquiry into and meaningful evaluation of an accident, attorneys must understand the complexity and relationship of state and federal boating laws. This article explores one facet of these laws - The Rules of the Road.¹

With its 540,835 registered recreational boats, Wisconsin ranks sixth nationally in the number of registered boats. Consequently, the state and federal boating laws affect many of the state's residents.

The most current records available show that in 1997 Wisconsin had 210 reported boating accidents involving 276 boats, 29 fatalities, 148 injuries, and $1,246,929 in property damage. The most common types of accidents were collisions with another boat (31%), falls overboard (15%), water-ski mishaps (12%), struck submerged object (9%), and collision with a fixed object (8.5%).²

A reportable boating accident is defined as a collision, accident, or other incident involving a boat that results in death or injury to a person requiring medical treatment, disability for more than 24 hours, loss of consciousness, or a total property damage in excess of $500.³ The United States Coast Guard estimates that only 10 to 15 percent of the nonfatal, reportable accidents are in fact reported.⁴ Conservatively, about 2,000 unreported nonfatal accidents occurred in 1997 that were reportable due to personal injuries and/or property damage.

Classification of Wisconsin's Waters

The boating waters of Wisconsin fall into two categories: 1) joint federal-state waters; and 2) sole-state waters.⁵ The federal inland waters include lakes Michigan and Superior and their tributaries; the Mississippi, Wisconsin, Milwaukee, and Fox rivers⁶; Pike Creek in the City of Kenosha⁷; and lakes Winnebago and Buttes des Morts. All other waters in Wisconsin are sole-state waters and subject only to the laws and procedures of the state.⁸

Vessels to Which the Rules Apply

The federal and state definitions of the term "boat" or "vessel" include every description of watercraft used or capable of being used as a means of transportation on water. The sole definitional difference is that Wisconsin excludes seaplanes and fishing rafts while Federal Rule 3(a) does not.⁹

Rules of the Road for Sole-state Waters

The accident in the introductory scenario occurred on Lake Mendota, which is classified as a sole-state water. Attorneys analyzing the accident will find the applicable boating rules of the road in Chapter 30, Subchapter V of the Wisconsin Statutes¹⁰; with "Traffic Rules" in section 30.65. These rules are solely concerned with multiple boat head-to-head approaches, oblique or right angle meetings, overtaking, and the duty of the boat having the right of way to maintain its course and speed.¹¹

There also exists the generic obligations to operate at a reasonable speed¹² and in a nonnegligent manner.¹³ The required safety equipment is limited to running lights, engine cutoff switch, carrying of life jackets, fire extinguisher, backfire flame arresters, ventilators, and battery tie-downs and cover.¹⁴ There also is a set of rules pertaining to docks and piers,¹⁵ waterskiing,¹⁶ and scuba diving operations, operating while intoxicated, creating a hazardous wake, boating near swimmers, operating in restricted areas, anchoring and mooring, overloading, and overpowering.¹⁷ Local Wisconsin units of government may enact ordinances as long as they are "in strict conformity" with and "not contrary to or inconsistent with" the state boating Rules of the Road.¹⁸

One difficulty in analyzing a boating accident is that, while there are several boating accident cases, none of the cases reported in the Wisconsin Statutes Annotated shed any light on the meaning of Wisconsin Maritime Rules of the Road or how they are to be applied to a given situation. In addition, to try to analogize their application from the automobile rules of the road is improper for two reasons. First, the auto rules are applied to fixed roadways and intersections - there generally are no fixed or restricted roadways on the water. Boating operations can occur anywhere in the two-dimensional plane on the surface of a lake or river. Second, the legislative history fails to support any landbound analogy.¹⁹

Legislative History of Chapter 30

The present Wisconsin Boating Rules of the Road originally were enacted as Chapter 505 of the Laws of 1959. According to the drafting note, the "traffic rules" were based upon the federal pilot rules then applicable to the Great Lakes and the Mississippi River, although the Wisconsin rules were "not as complete as such federal rules" nor have they become any more expansive.

From its inception in 1959, the Wisconsin boating traffic rules have given the Wisconsin Department of Natural Resources (DNR) the authority to adopt "such additional traffic rules as it deems necessary in the interest of public safety. Such rules shall conform as nearly as possible to the federal pilot rules."²⁰ The DNR has not promulgated any administrative rules under this grant of rule-making authority.

There were four separate and distinct sets of federal pilot rules in 1959. Each of these sets of rules had the express purpose of preventing collisions on certain specified waters of the United States or the high seas. In 1959 the federal rules consisted of the International, Inland, Western Rivers, and the Great Lakes Rules.²¹ The latter two rules were applicable to Wisconsin's dual federal-state jurisdictional waters. All of these sets of rules - with the exception of the International Rules²² - were amalgamated into the present Inland Navigation Rules that became effective on Dec. 24, 1981, except for the Great Lakes where they became effective on March 1, 1983.²³

Wisconsin's Boating Rules of the Road

The Inland Rules consist of five major subdivisions: Part A - General²⁴; Part B - Steering and Sailing Rules (that is, Rules of the Road)²⁵; Part C - Lights and Shapes²⁶; Part D - Sound and Light Signals²⁷; and Part E - Exemptions.²⁸ They are applicable to all of the inland navigable waters of the United States, which include Wisconsin's joint federal-state waters. When compared to the detail and breadth of the Inland Rules, the Wisconsin Rules of the Road have some congruencies, but are substantially less complete and definitive than their federal antecedents, and they lack the interpretive judicial precedents of the federal rules.

The United States Coast Guard enforces the federal maritime laws under the COLREGS and the Inland Rules.²⁹ For sole-state waters, the Wisconsin DNR and local authorities have the enforcement authority.³⁰ The joint federal-state waters are under both federal and state jurisdiction and enforcement.

Federal Precedents Apply to Wisconsin's Rules of the Road

Where state laws are patterned on federal laws - as is the case with the Wisconsin Rules of the Road - then the federal court decisions interpreting the Inland Rules and COLREGS are persuasive authority in interpreting the Wisconsin boating laws.³¹ Consequently, the limited state rules can be more fully fleshed out by using the federal rules and their precedents.

Analysis of the Scenario

Using the Inland Rules, one can begin to analyze the scenario's boat-pier accident on Lake Mendota. The collision with the dock raises a liability issue for the dock owner and the boat operator and passenger. Was the dock a hazard to navigation? Was the boat operator negligent as to lookout, speed, management and control, or good seamanship? Next, was the passenger negligent in any way, for example, by standing up, not wearing a life jacket, and so on? Once the collision occurred, was the operator negligent in how the boat was handled in a man overboard situation or in not wearing a life jacket himself?

The difficulty is that these questions cannot be answered by Wisconsin's boating law or its Rules of the Road. A comparison of the Inland and Wisconsin rules shows the general lack of specificity of the state rules when compared to the federal, making the latter an even more germane diagnostic tool. The sole purpose of the navigational rules is for the safe navigation of a vessel and to prevent collisions.³² There are numerous precedents to be found in the Inland Rules, the COLREGS, or 12 Am. Jur. 2d, Boats and Boating. It is necessary to explore the federal statutes and precedents in order to determine the relevant facts to consider and to apportion negligence, if any, in the Lake Mendota boating accident scenario. By resorting to these non-Wisconsin sources and once having gleaned the relevant facts, one can fully analyze and evaluate the legal ramifications of the sole-state waters scenario.

The Lake Mendota operator did not observe the pier in time to avoid it through normal boat handling practices, thereby raising the first issue of lookout. This could fall within the purview of Wisconsin's generic rule against operating a boat in a negligent manner so as to endanger life or property.³³ Inland Rule 5 specifically requires maintaining a proper lookout.³⁴ A companion concern with lookout is whether the operator's visibility was in any way restricted by weather conditions or the sun's angle on the water.³⁵ The boat's speed also may have been too fast for the prevailing conditions.³⁶

Consideration also must be given to the factor of having on the boat and wearing the appropriate life jackets and whether the pier was legal or a hazard to navigation. Even though these are not Rules of the Road issues, they are factors in the legal analysis of the accident. One also must consider the operator's boat handling both before and after his wife fell overboard.³⁷

The vast majority of national and Wisconsin boating accidents are the result of human error rather than not having the required equipment on board a boat, equipment failure, weather conditions, or sea states.³⁸ For this reason, the Rules of the Road come into consideration when analyzing many of the state's boating accidents.

Conclusion

A thorough familiarity with Wisconsin's Boating Rules of the Road is essential to the process of determining fault. In spite of the limited number of Wisconsin rules and their lack of judicial interpretations, one still can completely analyze a boating accident by using the federal rules and their expansive court interpretations.

Endnotes

¹ For the purposes of this article, the concept of the Rules of the Road is restricted solely to traffic rules applicable to vessel steering and sailing. Outside the scope of this article are the state and federal rules for vessel navigational lights, sound and light signals, and required safety equipment.

² 1997 Boating Programs Report, Wisconsin Department of Natural Resources, Bureau of Law Enforcement, P4B-LE-314-98, pg. 4.

³ Wis. Stat. § 30.67.

⁴ Supra, note 2.

⁵ The state's waters are defined as "any waters within the territorial limits of (the) state, including the Wisconsin portion of the boundary waters." Wis. Stat. § 30.50(14). The boundary waters are joint federal-state waters and are comprised of the contiguous portions of lakes Michigan and Superior, easterly of the center line of the St. Croix River to its confluence with the Mississippi River and easterly of the Mississippi River to the Illinois border. Wis. Const., Art. II, § I. These joint waters are subject to both the federal and the state laws.

⁶ Hine v. Trevor, 71 U.S. (12 How.) 555 (1866).

⁷ 33 U.S.C. § 57.

⁸ See Morse v. Home Ins. Co., 30 Wis. 496, 505-07 [1872] (concerning the Fox and Wolf rivers). See generally Gilmore and Black, The Law of Admiralty, 2nd Ed., p. 32-33.

⁹ 33 U.S.C. § 2003(a), Wis. Stat. § 30.50(2).

¹⁰ Wis. Admin. Code NR 5, "Boat Regulations and Registration." It does not, however, contain any operational rules of the road. DNR pamphlet JG LE93 96, PUBL-LE-301 96 Rev is entitled, "Wisconsin Boating Regulations."

¹¹ Wis. Stat. § 30.65.

¹² Wis. Stat. § 30.66.

¹³ Wis. Stat. § 30.68.

¹⁴ Safety Equipment. Running lights, Wis. Stat. § 30.61; engine cutoff switch, Wis. Stat. § 30.62(3m); life jackets, Wis. Stat. § 30.65(3); fire extinguisher, Wis. Stat. § 30.62(4); backfire flame arresters, Wis. Stat. § 30.62(5); ventilators, Wis. Stat. § 30.62(6); battery cover, Wis. Stat. § 30.62(7).

¹⁵ Wis. Stat. § 30.68.

¹⁶ Wis. Stat. § 30.69.

¹⁷ Wis. Stat. § 30.68.

¹⁸ Wis. Stat. § 30.77.

¹⁹ For a general discussion of boating law, see 12 Am. Jur. 2d Boats and Boating.

²⁰ "Note. This section contains certain well-established nautical traffic rules. All are consistent with the federal pilot rules applicable to this part of the country, though they are not as detailed or as complete as such federal rules. The federal pilot rules applicable on the Mississippi and its tributaries, for example, contain detailed provisions as to whistle signals and their meaning and, upon proper signal from a descending vessel, the ascending vessel may be required to bear to the left in passing rather than to the right. This illustrates the reason for the exception in sub (1) relative to deviations from the rules of this section when necessary to comply with federal rules. As far as the pleasure boater is concerned, however, compliance with the single rules of this section should suffice whether he is operating on the navigable waters of the United States or on waters entirely under the jurisdiction of the state of Wisconsin." Drafting Notes, pg. 27.

²¹ 33 U.S.C. § 61-147, (1980), 33 U.S.C. § 151-232.2 (1980); 33 U.S.C. § 301-356 (1980), and 33 U.S.C. § 241-295 (1980), respectively.

²² From 1981 on, the International Regulations for Preventing Collisions at Sea (COLREGS) have been contained in 33 U.S.C. § 1051 et seq., and the Inland Rules in 33 U.S.C. § 2001 et seq.

²³ International-Inland Navigation Rules, Commandant. Instruction M 16672-2; 23 August 1982, pg. vi.

²⁴ 33 U.S.C. §§ 2001, 2002, 2003.

²⁵ 33 U.S.C. §§ 2004-2019.

²⁶ 33 U.S.C. §§ 2020-2031.

²⁷ 33 U.S.C. §§ 2032-2037.

²⁸ 33 U.S.C. § 2038.

²⁹ 14 U.S.C. § 2.

³⁰ Wis. Stat. §§ 30.74(3), 77.

³¹ State v. Judd, 147 Wis. 2d 398, 433 N.W. 2d 260 (Ct. App. 1988); State v. Evers, 163 Wis. 2d 725, 472 N.W. 2d 828.

³² Navigation Rules, Coast Guard Institute, Department of Transportation, U.S. Coast Guard (02/82), Pam. No. 006311, 33 U.S.C. § 2001(a); Wis. Stat. § 30.65.

³³ Wis. Stat. § 30.68(2).

³⁴ 33 U.S.C. § 2005.

³⁵ 33 U.S.C. § 2018.

³⁶ 33 U.S.C. § 2006, Wis. Stat. § 30.66(1).

³⁷ 33 U.S.C. § 2002(a), Wis. Stat. § 30.66(1).

³⁸ Boating Statistics 1997, U.S. Department of Transportation United States Coast Guard, COMDTPUB 16754.11; supra note 2.

Carlyle H. Whipple, U.W. 1963, maintains Whipple Law Offices Ltd. in Madison. He has been an expert witness in more than 40 boating accident cases.

Wisconsin Lawyer