Updated update-TBB 08 one open spot - Page 2

Uncle Russ · 09-04-2008, 12:24 PM

Let me preface this by saying that while I have practiced law in the past, I am currently on inactive status with the bar, and nothing below should be interpreted or acted upon as legal advice. Moreover, this is not something I have researched. Just a few not-so-random observations:

Jureal and J2Hunt: I agree completely. I have been so dehydrated during July canoe racing that I fell face down in river mud and almost choked to death--at the age of 41. My partner (43) thought he needed to find a shower and took off all his clothes and fell into the Guadalupe at 3:00 a.m. while I was sleeping in the boat. Other folks have had conversations with cartoon characters. Dehdration (not to mention the complication of sleep deprivation) is a Nancy Pelosi type Bit&h and I have seen it lay low world-class triathletes in their twenties.

Bret is correct that a waiver, statement of assumption of risk, and indemnity agreement would go a long way in defending a lawsuit by a passenger who became ill on board an offshore boat. But it would not prevent someone (or their estate) from filing a lawsuit, together with all the costs attendant upon that. And if the case gets to a jury, anything can happen. I would suspect (without knowing) that UWE has liability insurance. Now when you have such insurance and are sued, the insurance company has a duty to defend--provided that the risk/incident that occurs is covered by the policy. For example, my insurance company currently wants to charge me $2,500.00 per year for a million-dollars coverage on one 360 acre tract of raw land. This would cover me for someone spraining their ankle in a gopher hole. But the policy would deny coverage for my chief exposure--some idiot contract laborer jerking off next to his own hay-baling machine and getting his tallywacker caught in the rotors.

So I have respectfully told my insurance company to go piss up a rope.

Another example: If you look at the title insurance policy on your home, after all the exceptions are written in by the title company lawyer, you rarely have much coverage at all. There is an old law-school joke that title insurance is like having fire insurance on a load of submerged cast iron.

The point of all this is that we have no way of knowing whether the folks at UWE are covered by insurance and if so, whether their underwriter would cover (and defend) against a suit of this type. Now, someone does not incur liability unless they have committed negligence--that is some act or omission that violated a duty to the plaintiff (the guy who files the suit.) For example, let's say wise old Uncle Russ (who was chasing women--and getting extremely dehydrated

)withGrescobia before Jerry was born

) has spooled his Accurate ATD130 with 400 pound Jerry Brown, 600 pound mono, with a 20/0 circle hook crimped on with a 12 pound blackfin for bait. Now let’s further suppose that a 1,200 pound Mako takes the bait. Uncle Russ has set the drag to 100 pounds in honor of his hero-worship of MrBill, but the fish starts pulling out line like a Buck knife cutting butter. UR believes that you can never be too careful, so he has clipped a safety tether from his broad butt to the rail. As he is being pinned against that rail, an astute deck hand sees that the old man is having trouble turning the crank--so he cuts the safety line and UR shoots overboard like a flying fish running from a yellow fin, and sleeps that night and forevermore with the fishes. Was the deckhand (and therefore the owner of the boat) negligent? You could argue it either way, but I would sure hate to be the insurance company lawyer going to a jury on those facts.

So let's take the case of someone with a known illness. Where would possible negligence on the part of the carrier lie? I personally see two possibilities:

(1) Failure to take appropriate action once the condition is known. In the July case, UWE did exactly right--Once Scott determined that an evacuation was called for (I guess that is what happened), they called the coast guard and followed orders. They could not have done any better. No doubt they would do the same next time. That would only leave frustration on the part of some folks (see ALW s understandable concern stated earlier.)

(2) Failure to make a decision for the passenger that it is in his best interest not to go out to sea given his condition.

The second theory of negligence has always pissed me off royally. I used to work (as a layman) with the board of a non-profit group that puts on a 260 mile non-stop canoe race. I drafted the waiver and wrote up about a thousand word set of warnings--such as "if you fall in the water you might drown." Duhhhh. That sort of thing. It’s just some more of that trial-lawyer-induced bullshit like labeling sulfuric acid “Do not administer in enema form.” Anyway, we had an old man who finished the race with a lot of help at the age of 73. He then became convinced he could finish solo, and tried several times. He never had a heart attack or any symptoms--but we always held our collective breaths. And he always mercifully dropped out before he dropped dead or drowned. I was against putting the board in a position of turning people down for health reasons because of the implied duty to delve into their health and make hard decisions for them.

So what is the lesson to be learned here? Trial lawyers (like that paragon of virtue, John Edwards--imagine loud puking noises here--) have re-defined responsibility and done their best to transfer it from the individual to any old "deep pocket" they can find. Where, in fact, should UWE draw the line? Sure, there might be some justification for excluding a customer where they know he has a condition and have in fact, seen it on a previous trip. But what if, say, the Captain overhears another passenger preparing to board say: "Boy, I took a load of Viagra and I've had an erection that has lasted so far for 15 hours. I sure hope it goes away!" Do they have a duty to refer him to a cheap whorehouse to take care of his condition? Or what if, more seriously, a passenger tells the captain he has some insulin he has to keep refrigerated as he has a tendency to go into convulsions under stress. Do they then have a duty to kick him off the boat as he is boarding? The question is: how far does the duty extend to make decisions for your customers?

And to take it one step further: Does a carrier like UWE have a duty to take a medical history of everyone who goes fishing? I'm no doctor, but I do happen to know that a male member of Homo sapiens sapiens who has a pronounced belly, has a solid indicator of an enhanced risk that he might at any moment go belly up and die like a dog (that’s a medical term, Scott

). But for God's good sake, I have seen offshore fishermen who needed one of those heavy-duty carts, not for their gear, but to haul their gut on board. Should UWE have to deny boarding to anyone exceeding a certain BMI????? Should they inspect medical records or make poor old Uncle Russ drop his pants for examination and then take a polygraph to determine how long he has had that huge, Viagra-overdose-induced-erection?

I really don't know.

What it boils down to is this: UWE is understandably trying to protect itself--perhaps on advice of their attorney or insurance carrier. And you can't blame them for that. On the other hand, there are many among us who have latent medical conditions that could pop up and pop us off at any time.

ALW: While I respect your opinion, I differ with it completely. Jerry did not in any way know what was going to happen on that trip. And there is very little reason for us to believe it is likely to happen on the next one. And while I agree somewhat that it isn't so much about being a vet, I also am appreciative enough for what those folks did in Viet Nam to be willing to take the minor risk of losing a couple of hours of fishing in order that a guy who served his country could get a little time at the rail as well--especially one who can out-fish my strong, healthy ass any day of the week. I suspect that the fisherman in question has learned a major lesson about hydration, pacing, and good sense. On the other hand, if somebody felt strongly enough about it, I suppose he or she could sue the guy who had a heart attack in small claims court for the pro-rated price of the fishing time they lost.

This isn't only about fishing time--it's about freindship, comradeship, and brotherhood as well. Just my honest, humble, slightly humorous opinion.

Russ

jureal · 09-04-2008, 12:53 PM

Whew,long but very well written.
Off to Puerto Vallarta tomorrow for a couple days of fishing.
This is the heart of Dehydration country.
The captain of the charter boat did not ask me for a dehydration waiver.
But then again, lawsuits are rare in Mexico.

Uncle Russ · 09-04-2008, 01:44 PM

Jureal: Yeah, I confess to being a long winded SOB--although I don't know about it's being well-written. Once on some board, I shot out a post of about 5,000 words. The first answer was: "Wow, that's 15 minutes of my life I'll never get back." I answered: "I know what you mean--it took me 5 minutes to write it." I have drunk water while hiking in Mexico I couldn't see through. I figure when they hit my stomach, the germs were killed instantly. Here's wishing you great luck in PV, (but actually thinking I wish it was me and you had a straw up your butt.

)

Russ

Bret · 09-04-2008, 05:09 PM

Well put uncle Russ.. I think the whole thing is HORSESHIT! Jerry is one tough hombre.. I have fished with him several times.. He is always welcome on my boat!!.. ( I have to bring him to insure we catch some fish)!!

ksong · 09-04-2008, 05:35 PM

Dehydration can happen to anybody.
I got dizzy when I fished grouper out of NC last Saturday when it was calm and hot. I was OK after drinking lot of water and stayed in shaded area for a while.

Snagged · 09-04-2008, 09:33 PM

Thanks guys.
ALW get a good grip on your nose and pull your head out of your rectum.
You know little and understand less.

MrBill · 09-04-2008, 09:41 PM

This whole thing stinks. It was handled with very poor taste and the timing of the eviction couldn't have been worse. Someone forgot to take Business or Common Sense 101. I think they will suffer because of the way it was handled. People talk and with the internet information travels very fast.

How do think Snagged feels right now? I would feel so degraded if I was told I couldn't board a boat because I wasn't healthy and getting up there in years. It would leave you with an empty feeling. Kind of like you are worthless. Your fishing days are over. It's time for the nursing home. This is very sad and I hope you guys will remember this treatment when planing party boat fishing trips in the future. Your just a number.

This whole matter could and should have been done in good taste weeks ago.

ALW, you are very insensitive and I hope you aren't this way in real life situations.

SkeeterRonnie · 09-04-2008, 09:59 PM

my money will be staying in Port A now... Could care less to step foot in Freeport. Big E is a sorry arse POS operation....

wacker · 09-04-2008, 10:01 PM

Quote:

Originally Posted by ALW

I just think it is inconsiderate to your fellow fishermen to screw up their trip. I would never do this in that state of health. If you know you have health issures, don't book a trip like this.

It is not really an age issue or Vietnam vet issue.

It is more a liability.

The CG may just tell the Big E to return to port next time.

ALW, You are invited to fish on my boat anytime....But it will be a one way trip

STx Fisherman · 09-04-2008, 10:19 PM

Quote:

Originally Posted by wacker

ALW, You are invited to fish on my boat anytime....But it will be a one way trip

That would make you The Whacker Wacker ...

09-04-2008, 12:24 PM	#11 (permalink)
Uncle Russ Senior Member Join Date: Oct 2006 Posts: 1,136	Let me preface this by saying that while I have practiced law in the past, I am currently on inactive status with the bar, and nothing below should be interpreted or acted upon as legal advice. Moreover, this is not something I have researched. Just a few not-so-random observations: Jureal and J2Hunt: I agree completely. I have been so dehydrated during July canoe racing that I fell face down in river mud and almost choked to death--at the age of 41. My partner (43) thought he needed to find a shower and took off all his clothes and fell into the Guadalupe at 3:00 a.m. while I was sleeping in the boat. Other folks have had conversations with cartoon characters. Dehdration (not to mention the complication of sleep deprivation) is a Nancy Pelosi type Bit&h and I have seen it lay low world-class triathletes in their twenties. Bret is correct that a waiver, statement of assumption of risk, and indemnity agreement would go a long way in defending a lawsuit by a passenger who became ill on board an offshore boat. But it would not prevent someone (or their estate) from filing a lawsuit, together with all the costs attendant upon that. And if the case gets to a jury, anything can happen. I would suspect (without knowing) that UWE has liability insurance. Now when you have such insurance and are sued, the insurance company has a duty to defend--provided that the risk/incident that occurs is covered by the policy. For example, my insurance company currently wants to charge me $2,500.00 per year for a million-dollars coverage on one 360 acre tract of raw land. This would cover me for someone spraining their ankle in a gopher hole. But the policy would deny coverage for my chief exposure--some idiot contract laborer jerking off next to his own hay-baling machine and getting his tallywacker caught in the rotors. So I have respectfully told my insurance company to go piss up a rope. Another example: If you look at the title insurance policy on your home, after all the exceptions are written in by the title company lawyer, you rarely have much coverage at all. There is an old law-school joke that title insurance is like having fire insurance on a load of submerged cast iron. The point of all this is that we have no way of knowing whether the folks at UWE are covered by insurance and if so, whether their underwriter would cover (and defend) against a suit of this type. Now, someone does not incur liability unless they have committed negligence--that is some act or omission that violated a duty to the plaintiff (the guy who files the suit.) For example, let's say wise old Uncle Russ (who was chasing women--and getting extremely dehydrated )withGrescobia before Jerry was born ) has spooled his Accurate ATD130 with 400 pound Jerry Brown, 600 pound mono, with a 20/0 circle hook crimped on with a 12 pound blackfin for bait. Now let’s further suppose that a 1,200 pound Mako takes the bait. Uncle Russ has set the drag to 100 pounds in honor of his hero-worship of MrBill, but the fish starts pulling out line like a Buck knife cutting butter. UR believes that you can never be too careful, so he has clipped a safety tether from his broad butt to the rail. As he is being pinned against that rail, an astute deck hand sees that the old man is having trouble turning the crank--so he cuts the safety line and UR shoots overboard like a flying fish running from a yellow fin, and sleeps that night and forevermore with the fishes. Was the deckhand (and therefore the owner of the boat) negligent? You could argue it either way, but I would sure hate to be the insurance company lawyer going to a jury on those facts. So let's take the case of someone with a known illness. Where would possible negligence on the part of the carrier lie? I personally see two possibilities: (1) Failure to take appropriate action once the condition is known. In the July case, UWE did exactly right--Once Scott determined that an evacuation was called for (I guess that is what happened), they called the coast guard and followed orders. They could not have done any better. No doubt they would do the same next time. That would only leave frustration on the part of some folks (see ALW s understandable concern stated earlier.) (2) Failure to make a decision for the passenger that it is in his best interest not to go out to sea given his condition. The second theory of negligence has always pissed me off royally. I used to work (as a layman) with the board of a non-profit group that puts on a 260 mile non-stop canoe race. I drafted the waiver and wrote up about a thousand word set of warnings--such as "if you fall in the water you might drown." Duhhhh. That sort of thing. It’s just some more of that trial-lawyer-induced bullshit like labeling sulfuric acid “Do not administer in enema form.” Anyway, we had an old man who finished the race with a lot of help at the age of 73. He then became convinced he could finish solo, and tried several times. He never had a heart attack or any symptoms--but we always held our collective breaths. And he always mercifully dropped out before he dropped dead or drowned. I was against putting the board in a position of turning people down for health reasons because of the implied duty to delve into their health and make hard decisions for them. So what is the lesson to be learned here? Trial lawyers (like that paragon of virtue, John Edwards--imagine loud puking noises here--) have re-defined responsibility and done their best to transfer it from the individual to any old "deep pocket" they can find. Where, in fact, should UWE draw the line? Sure, there might be some justification for excluding a customer where they know he has a condition and have in fact, seen it on a previous trip. But what if, say, the Captain overhears another passenger preparing to board say: "Boy, I took a load of Viagra and I've had an erection that has lasted so far for 15 hours. I sure hope it goes away!" Do they have a duty to refer him to a cheap whorehouse to take care of his condition? Or what if, more seriously, a passenger tells the captain he has some insulin he has to keep refrigerated as he has a tendency to go into convulsions under stress. Do they then have a duty to kick him off the boat as he is boarding? The question is: how far does the duty extend to make decisions for your customers? And to take it one step further: Does a carrier like UWE have a duty to take a medical history of everyone who goes fishing? I'm no doctor, but I do happen to know that a male member of Homo sapiens sapiens who has a pronounced belly, has a solid indicator of an enhanced risk that he might at any moment go belly up and die like a dog (that’s a medical term, Scott ). But for God's good sake, I have seen offshore fishermen who needed one of those heavy-duty carts, not for their gear, but to haul their gut on board. Should UWE have to deny boarding to anyone exceeding a certain BMI????? Should they inspect medical records or make poor old Uncle Russ drop his pants for examination and then take a polygraph to determine how long he has had that huge, Viagra-overdose-induced-erection? I really don't know. What it boils down to is this: UWE is understandably trying to protect itself--perhaps on advice of their attorney or insurance carrier. And you can't blame them for that. On the other hand, there are many among us who have latent medical conditions that could pop up and pop us off at any time. ALW: While I respect your opinion, I differ with it completely. Jerry did not in any way know what was going to happen on that trip. And there is very little reason for us to believe it is likely to happen on the next one. And while I agree somewhat that it isn't so much about being a vet, I also am appreciative enough for what those folks did in Viet Nam to be willing to take the minor risk of losing a couple of hours of fishing in order that a guy who served his country could get a little time at the rail as well--especially one who can out-fish my strong, healthy ass any day of the week. I suspect that the fisherman in question has learned a major lesson about hydration, pacing, and good sense. On the other hand, if somebody felt strongly enough about it, I suppose he or she could sue the guy who had a heart attack in small claims court for the pro-rated price of the fishing time they lost. This isn't only about fishing time--it's about freindship, comradeship, and brotherhood as well. Just my honest, humble, slightly humorous opinion. Russ __________________ "Tschirhart: Helluva deal. You bait the hooks--I catch the fish!--Grimm." Last edited by Uncle Russ : 09-04-2008 at 12:45 PM.

09-04-2008, 01:44 PM	#13 (permalink)
Uncle Russ Senior Member Join Date: Oct 2006 Posts: 1,136	Jureal: Yeah, I confess to being a long winded SOB--although I don't know about it's being well-written. Once on some board, I shot out a post of about 5,000 words. The first answer was: "Wow, that's 15 minutes of my life I'll never get back." I answered: "I know what you mean--it took me 5 minutes to write it." I have drunk water while hiking in Mexico I couldn't see through. I figure when they hit my stomach, the germs were killed instantly. Here's wishing you great luck in PV, (but actually thinking I wish it was me and you had a straw up your butt. ) Russ __________________ "Tschirhart: Helluva deal. You bait the hooks--I catch the fish!--Grimm."

09-04-2008, 09:33 PM	#16 (permalink)
Snagged Senior Member Join Date: May 2006 Posts: 1,114	Thanks guys. ALW get a good grip on your nose and pull your head out of your rectum. You know little and understand less. __________________ Jerry Uh oh, Snagged again!

09-04-2008, 09:41 PM	#17 (permalink)
MrBill Senior Member Join Date: Sep 2006 Posts: 1,211	This whole thing stinks. It was handled with very poor taste and the timing of the eviction couldn't have been worse. Someone forgot to take Business or Common Sense 101. I think they will suffer because of the way it was handled. People talk and with the internet information travels very fast. How do think Snagged feels right now? I would feel so degraded if I was told I couldn't board a boat because I wasn't healthy and getting up there in years. It would leave you with an empty feeling. Kind of like you are worthless. Your fishing days are over. It's time for the nursing home. This is very sad and I hope you guys will remember this treatment when planing party boat fishing trips in the future. Your just a number. This whole matter could and should have been done in good taste weeks ago. ALW, you are very insensitive and I hope you aren't this way in real life situations. Last edited by MrBill : 09-04-2008 at 09:51 PM.

09-04-2008, 09:59 PM	#18 (permalink)
SkeeterRonnie Senior Member Join Date: Jul 2006 Posts: 1,288	my money will be staying in Port A now... Could care less to step foot in Freeport. Big E is a sorry arse POS operation.... __________________ www.ronniemanningfishing.weebly.com

09-04-2008, 12:53 PM	#12 (permalink)
jureal Senior Member Join Date: Oct 2007 Posts: 294	Whew,long but very well written. Off to Puerto Vallarta tomorrow for a couple days of fishing. This is the heart of Dehydration country. The captain of the charter boat did not ask me for a dehydration waiver. But then again, lawsuits are rare in Mexico.

09-04-2008, 05:09 PM	#14 (permalink)
Bret Senior Member Join Date: May 2006 Location: DFW Posts: 1,177	Well put uncle Russ.. I think the whole thing is HORSESHIT! Jerry is one tough hombre.. I have fished with him several times.. He is always welcome on my boat!!.. ( I have to bring him to insure we catch some fish)!!

09-04-2008, 05:35 PM	#15 (permalink)
ksong Senior Member Join Date: May 2006 Posts: 1,418	Dehydration can happen to anybody. I got dizzy when I fished grouper out of NC last Saturday when it was calm and hot. I was OK after drinking lot of water and stayed in shaded area for a while.

Currently Active Users Viewing This Thread: 2 (1 members and 1 guests)
Pope

Thread Tools	Search this Thread
Show Printable Version Email this Page	Search this Thread: Advanced Search
Display Modes
Linear Mode Switch to Hybrid Mode Switch to Threaded Mode