The law of the beach

By Jeannie Greeley

Summertime. The word alone makes one want to strip down, throw some bottles on ice, hit the water and take part in the warm-weather debauchery that prevails over New England from solstice through Labor Day.

But along with all that fun in the sun comes a host of rules and regulations governing the water and the sand. And unless boaters and beach-goers in Massachusetts are up on the law, they could be facing a heap of trouble, according to lawyers and state officials. Among the tips they offer Exhibit A:

Hit the deck

“The value of a life in the maritime context is minimal - it’s nothing,” says Carolyn M. Latti, a lawyer with offices in Boston, Gloucester and New Bedford.

Her warning is intended not as a fear tactic, but rather a reminder of the responsibility involved in summertime activities like recreational boating, tubing and jet skiing.

Latti has seen everything from horrific dismemberment in boating collisions to debilitating injuries resulting from tubing accidents. Her firm estimates that more than 5,000 personal-watercraft accidents occur in the U.S. annually.

“Aside from the accident, the biggest issue is going to be the insurance coverage,” she says. “Sometimes you may have these horrific injuries, and there’s absolutely no coverage.”

Latti urges recreational boaters to educate themselves about their insurance policies. Many boaters, she says, are unaware that they even have to notify their insurance carriers that they own boats.

More than likely, the boat will be covered under a homeowner’s policy or an umbrella policy. But many times, a boat owner won’t discover that his coverage falls short until after an accident or injury, Latti says. And if the person at fault doesn’t own a home or have appropriate insurance coverage, there may be no possibility of recovering from that accident.

In addition, the waters are governed by various competing state and federal laws. If an accident occurs in state territorial waters (up to 12 miles from shore, courts have found), parties can rely on state statutes that allow for the potential of greater recovery.

If a deadly accident occurs beyond state waters, however, it is governed by the federal Death on the High Seas Act and may result in little more than funeral expenses being covered, Latti says.

“Federal maritime law for when someone dies is extremely cold,” she notes. “It does not value the loss of a life. A broken finger, in some cases, is worth more than a child who dies.”

There is also the Limitation of Liability Act, which allows a defendant to try to limit his liability to the value of the vessel. So, if an individual were hurt on a jet ski, for example, regardless of the extent of the injuries, the defendant could try to limit his damages to the price of the jet ski.

Latti became all too familiar with the Limitation of Liability Act in a case she handled involving a young client who lost part of his brain in a tubing collision with a boat. The defense tried to argue that the damages should be limited to the price of the boat, which was approximately $10,000.

Maritime lawyer Joseph M. Orlando of Gloucester, meanwhile, stresses the importance of boaters learning how to operate their vessels and educating themselves about weather conditions, navigation and proper safety equipment.

A highly skilled boater himself, Orlando says every boat owner should take the Coast Guard auxiliary course.

“Of the people who live on the coast of New England, there will be tens of thousands of personal injuries this summer,” he predicts.

Don’t rock the boat

It may be startling to hear a cop utter the following statement, but it’s true nonetheless: “You can drink while you’re driving a boat.”

So says Jerry DeCristofaro, a lawyer and director of legal training at the State Police Academy.

But despite the fact that there are no prohibitions against drinking while operating a boat, that doesn’t give boaters carte blanche on the waterways, DeCristofaro warns.

In fact, with waterways patrolled by hundreds of officers from state, federal and local agencies, boaters need to be super cautious, especially considering that they can be stopped at any time for routine safety inspections and face greater consequences than if they were on the roads.

“On the marine side, all civil violations - no matter how minor - are arrestable,” says DeCristofaro. “If you want to give the police a hard time, they have an ace in the hole that’s pretty large.”

As for boating under the influence, or BUI, the officer says many boaters are unaware that their behavior on the water affects their motor-vehicle driving record, and vice versa.

For example, if a driver already has a DUI conviction, a BUI will count as his second offense, making that operator susceptible to stringent new standards under Melanie’s Law, which could result in a driver’s license suspension for three or more years.

“If you’re stopped for BUI in a boat, and you refuse to take a Breathalyzer, as it stands now they’re supposed to suspend your license to drive a motor vehicle,” reports DeCristofaro. “I think that most boaters don’t realize that the BUI statute is going to have serious repercussions on your motor vehicle side if you violate the [drunk-driving] statute.”

Additionally, unlike in a car, two or more people can be party to a BUI charge if they were intoxicated while helping to operate the boat.

BUIs also come with a price tag that dwarfs that of a DUI, DeCristofaro warns. Unlike the few hundred dollars that a roadside towing service might cost, towing a boat can run its operator 10 times that amount.

“Depending on the size of the boat, you could run into the thousands,” he says. “Before you even go to court, we win. We may lose the case, but the amount of money it’s going to cost the operator to get himself out of that pickle is going to be quite a lot of cash.”

Taking the bait

Before you go acting like you’re on the “Deadliest Catch,” reeling in a stubborn bass the size of your thumb, recreational fishermen beware: New and changing regulations from the Massachusetts Division of Marine Fisheries govern everything from the size of one’s catch to the season in which it can be caught.

And the rules vary for almost every species lurking in those dark waters. (A full list of species and requirements can be found on the division’s website at http://www.mass.gov/dfwele/dmf/.)

For the area’s most popular catch, striped bass, regulations prohibit anglers from snagging more than two a day, and the fish must be larger than 28 inches.

“That’s a restoration and management program that’s been in effect since 1980. And it’s probably the most successful one in the world,” says Paul Diodati, director of the local Division of Marine Fisheries. “The 28 inches is big, but that provides a large percentage of female bass the opportunity to spawn at least once.”

Regulations for the area’s second most popular catch - summer flounder, or fluke - changed this year: They now must be at least 17.5 inches long and there is a five-fish-per-day maximum. The season runs from June 10 to Aug. 15.

But perhaps the most important rule change recreational fishermen need to be aware of is a license requirement for saltwater fishing, the result of a 2006 law that will create a national registry that goes into effect in January 2009. It will effectively make this summer the last season free from government oversight for saltwater anglers.

“Right now in Massachusetts, that’s not required. Anyone can go to the shore and cast a line,” says Diodati. “We do require a fresh-water fishing license; for salt water, none is required for recreational fishermen.”

With an estimated 1.2 million people participating in recreational saltwater fishing each year, Diodati says the measure is being met with much resistance, even though the annual price tag of the license could be as little as $15 to $30, and the regulation doesn’t go into effect until 2011.

“Over the past 20 years or so, most recreational fishermen have always argued that their harvest of marine fish is so low compared to commercial harvests that they either shouldn’t be part of management plans, or they shouldn’t be restricted the way the commercial guys are,” Diodati says.

But activity is proving otherwise, with recreational harvests sometimes exceeding those of commercial fishermen.

“It’s a controversial issue because many people in Massachusetts feel that this is a civil liberty that’s being taken away,” he notes. “They should definitely anticipate this.” {EXA}

Jeannie Greeley is a freelance writer and former Massachusetts Lawyers Weekly reporter. She can be contacted at jeannieg@comcast.net.

Sidebar:

‘Look, ma! No tan lines!’

Town rules. State laws. Federal regulations. Public and private reservations. Dogs permitted and dogs prohibited. Campfires here, but not there. And on it goes.

Trying to figure out the law of the beach can be more painful than getting sand in your bathing suit. So why not just take it off?

Not so fast! Lest you didn’t know, nude sunbathing is illegal in Massachusetts.

But that certainly doesn’t stop the adventurous sun worshipper from baring it all. The question is, do you need to worry about a crackdown on nude sunbathing?

“No, definitely not,” says Aquinnah Police Chief Randhi Belain, whose four-person force is responsible for Martha’s Vineyard’s Moshup Beach at Gay Head, a well-known spot for the swimsuit-averse sunbather. “I don’t have the manpower to enforce it the way I want to enforce it.”

But, he adds, “If we get a complaint, we’ll definitely go down there.”

Although the local Board of Selectmen has encouraged greater enforcement of the prohibition on nude sunbathing, Belain says unless a more serious offense is reported, the violation results in a fine of $50 or less.

“We issue them a bylaw ticket, and then what?” he asks. “I don’t really have too much legal recourse. You’ve got to have some sort of complainant or victim.”

But Belain says complaints of beachgoers masturbating and naked men following girls do concern him that the area is not better patrolled.

“That’s where I’m uncomfortable with it being a nude beach and not being patrolled,” he says. “Even though it may seem like it’s in a remote area, that’s still a public beach.”

Herring Cove Beach in Provincetown, another area known for its bathers baring it all, is governed by more complex federal regulations, as it falls under the purview of the Cape Cod National Seashore, according to Craig Thatcher, acting chief ranger.

According to the federal regulations, “Public nudity, including public nude bathing, by any person on Federal land or water within the boundaries of Cape Cod National Seashore is prohibited.”

So just what is public nudity?

“Public nudity is a person’s intentional failure to cover with a fully opaque covering that person’s own genitals, pubic areas, rectal area, or female breast below a point immediately above the top of the areola when in a public place,” the regulation states.

Violation of these rules can result in a fine of $50, plus $25 in court fees, all the way up to $5,000 or six months in jail, Thatcher says. If the penalties seem a tad draconian, fear not - the law applies only to people over the age of 10.

However, with a recent crackdown on public sex in Provincetown, Thatcher warns that more rangers will be on patrol, and the exposed might want to cover up.

“We will probably have more presence out in some of those areas,” Thatcher says, “so those folks are going to need to be covered up.”

But Thatcher also notes that rangers don’t assume a correlation between nude sunbathing and sex and that the latter rises to a different level of seriousness. As an analogy, he says nude sunbathing is to public sex what an open-container violation is to a DUI offense.

Either way, folks need to think about the consequences of going bottoms up.

- Jeannie Greeley