OLR Bill Analysis

sHB 7184

AN ACT CONCERNING BOATING SAFETY.

SUMMARY:

This bill expands the law concerning certain vessels that are considered abandoned and adds hearing and other requirements to determine the validity of any custody, removal, or storage of such a vessel. It also expands requirements for the sale of such a vessel.

It modifies several specific boating safety statutes, replacing them by incorporating applicable federal laws by reference. It also:

The bill eliminates the requirement that the DEP commissioner prescribe, install, and maintain suitable safety controls and warning devices for boats on the approaches to Housatonic River dams. (Federal law regulates these devices, and owners must maintain them. )

It also makes technical and conforming changes.

EFFECTIVE DATE: Upon passage, except for the accident notification provisions, which are effective October 1, 2007

ABANDONED VESSELS (§§ 1-3)

The bill changes the law concerning removal of abandoned vessels, which the bill defines, on (1) navigable state waters and on (2) state waters (i. e. , separate from those navigable) or public or private property. It creates a new and expanded hearing process for vessels abandoned on both navigable state waters and on state waters or public or private property.

The bill defines “abandoned vessel,” incorporating current law's term, “derelict vessel. ” Under the bill, the definition includes a vessel, scow, lighter, or similar floating structure or part of a structure left unattended:

The bill defines a ”removing authority” as a harbor master, a deputy harbor master, a municipality's chief executive official or his or her designee, or the Public Safety (DPS), Transportation (DOT), or Environmental Protection (DEP) departments' commissioners or their designees.

Under the bill, “waters of this state” means all waters, including navigable waters, within the territorial limits of the state.

Removing an Abandoned Vessel from Navigable State Waters

Under current law, if a boat's master or owner or a person having charge of the vessel that is lying within navigable state waters neglects or refuses to obey a harbormaster's order when the harbormaster is performing his or her duties, the harbormaster may order the vessel to be removed at the owner's expense. The bill eliminates the terms “master” and person in “charge” and specifies that an owner, owner's agent, or operator is subject to this and the bill's provisions. By law, failing to obey such an order of a harbormaster is an infraction and the person is subject to an $ 85 fine.

Notice. By law, a harbormaster may notify any officer of an organized police department or any state police officer that a person has committed the above infraction. That officer may remove and take the vessel into custody and must give written notice by certified mail, to the person, if known. The bill includes notice to any person or entity that has filed a legal or equitable interest claim about the vessel with the secretary of the state, and that the notice must be return receipt requested. It is unclear who determines that a person or entity has a legal or equitable interest (the police or the secretary of the state).

By law, this notice must state (1) that the vessel has been taken into custody and stored; (2) the storage location; (3) the vessel can be sold after 15 days if its market value is not more than $ 500 or after 90 days if its value is greater than $ 500; (4) that the owner has the right to contest the validity of the taking by application, on a form prescribed by the commissioner of transportation, to the hearing officer named in the notice within 10 days from the notice's date. These application forms must be readily available to the public at all DOT offices and at all state and local police departments. The bill eliminates references to the boat's removal as a taking, and instead allows an interested party (an owner, owner's agent, or a person or entity claiming a legal or equitable interest) to contest the validity of the custody, removal, or storage of the vessel at a hearing. The bill specifies that if a request for such a hearing is made, it must be in writing to the officer and, as under current law, be made within 10 days of the notice's date. The bill shortens the length of time before the vessel may be sold and eliminates separate periods based on its value. Specifically, it allows such a vessel to be sold after 30 days. The bill requires the notice also to state the location from which the vessel was removed.

The bill provides that such a hearing request must include (1) the name, address, and telephone number of the person or entity requesting the hearing; (2) a description of the vessel; and (3) the location from which the vessel was removed, if known.

Hearing Officer and Hearing. Under current law, chief executive officers of the towns involved may appoint a suitable person, who cannot be a state or local police department member, to be a hearing officer to hear applications to determine whether or not the taking was authorized. Two or more towns may join in appointing the officer, provided the hearing must be held at a location which is as near to the town where the vessel was located as is reasonable and feasible. The bill instead requires the officer to notify the chief executive official of the town from which the vessel was removed of the hearing request upon receiving the request for a hearing from the owner, owner's agent, operator, or interested party. The bill requires the chief executive official to appoint a suitable person (which apparently may be a police officer) to be a hearing officer to hear applications to determine whether or not the taking of the vessel was authorized under the bill.

By law, the DOT commissioner must establish regulations on qualifications necessary for hearing officers and procedures for holding hearings. The bill provides that the hearing is limited to a determination of the validity of the custody, removal or storage of the vessel under the provisions of this section. Under current law, if the hearing officer determines that the owner or master was in violation of the harbormaster's order, the vessel owner or master is liable for any removal or the costs and expenses incident to the removal, including legal expenses and court costs incurred in its recovery. If the hearing officer determines the vessel owner or master did not violate such an order, he or she is not liable for any expenses. The law allows that anyone aggrieved by such a hearing officer's decision may, within 15 days of the notice of the decision, appeal to the Superior Court for the judicial district where the hearing was held.

Under the bill, if the hearing officer determines that the custody, removal or storage of the vessel was authorized under the bill, the owner, owner's agent, the operator of the vessel or the person or entity claiming a legal or equitable interest in the vessel is liable for any expenses incurred as a result of such custody, removal or storage and the costs and expenses incident to such custody, removal or storage, including legal expenses and court costs incurred in the custody, removal or storage. If not, these people are not liable. The bill also provides that it if the owner, owner's agent, operator of the vessel or the person or entity claiming a legal or equitable interest in the vessel reimburses the officer for all costs associated with the custody, removal or storage of the vessel before the hearing officer's decision and the hearing officer determines that the custody, removal or storage of the vessel was not authorized, the officer must reimburse the owner, owner's agent, operator of the vessel or the person or entity claiming a legal or equitable interest in the vessel.

Sale. Under current law, the state or local police department which has custody of the removed vessel has the power to sell the vessel at public auction. The state or local police department must apply such a sale's proceeds toward the payment of its charges, any storage charges, and the payment of any debt or obligation incurred by the officer who placed the vessel in storage. This sale must be advertised three times in a newspaper published or having a circulation in the town where the vessel is stored or located, beginning at least five days before the sale; and, if the state or local police know the vessel owner's last known address or it can be determined by exercising reasonable diligence, the police must provide the owner with notice of the time and place of sale by mailing notice to him or her in a registered or certified letter, postage paid, to the last known address, at least five days before the sale.

The state or local police department must report to the DOT commissioner (1) the sales price, storing, and towing charges, if any; (2) buyer's name and address; (3) identification of the vessel and such other information as the DOT commissioner may require by regulation, within 15 days after the vessel's sale. The rest of the sale proceeds must be paid to the owner of the vessel or his legal representatives, if claimed at any time within one year from the sale date. By law, if the balance is not claimed, it escheats to the municipality from which the vessel was removed. Under current law, if the expenses incurred by the municipality for removal, towing, vessel sale, and any fines exceed a sale's proceeds, the vessel owner is liable for that amount. A vessel may not be sold as above until (1) the required 10-day time period expires and (2) a final decision has been rendered for a requested hearing.

For such a sale, the bill specifies that, the state or local police department may sell the vessel at public auction no earlier than 30 days after written notice was sent. The state or local police department must apply the sale's proceeds, after paying any security interests filed with the secretary of the state, its charges, any storage charges, and any debt or obligation incurred by the officer who placed the vessel in storage. The sale must be advertised twice (instead of three times) in a newspaper published or having a circulation in the town where such vessel was removed, beginning at least five days before the sale. If the last place of residence of the owner, owner's agent or operator of the vessel is known or can be reasonably determined, the notice of the sale must be given to him by sending notice to him by certified mail, return receipt requested, at his usual residence, at least five days before the sale date.

For such a sale, the bill requires the sales notice to be sent at least five days before the day of the sale to (1) any person or entity that has filed with the secretary of the state claiming a legal or equitable interest in the vessel, (2) the DEP and DMV commissioners, and (3) to the harbormaster in the town from which the vessel was removed. The DEP commissioner must make a reasonable attempt to determine if the vessel was stolen and must report her determination to the officer. The sale proceeds must be used to satisfy any security interests filed with the secretary of the state; cover any custody, removal, and storage charges, and pay all expenses connected with the sale. After that, the vessel's owner, owner's agent or operator or their legal representatives, may receive the rest, if they make a claim one year from the sale date.

Municipal Liability. The bill provides that municipalities or their employees, officer, or agents are liable for damages caused by the custody, removal, and storage of a vessel. By law, municipalities are liable for damages caused by negligent acts or omissions of the municipality or any of its employees, officers, or agents acting within the scope of their employment or official duties; negligent performance of functions from which they derive profit or pecuniary benefit; or actions that create or contribute to in creating a nuisance. But, a municipality is not liable for (1) damages caused by acts or omissions that constitute criminal conduct, fraud, actual malice, or willful misconduct, or (2) acts or omissions that require the exercise of judgment or discretion as an official function of the authority granted by law.

Removing a Vessel Abandoned on State Waters or Public or Private Property

The bill sets up a similar process as above for abandoned vessels on (other than navigable) state waters or public or private property.

By law, no one may abandon a vessel on state waters or on public or private property without the consent of the property owner or without required authorization. The bill makes intentionally abandoning a vessel on state waters or on public or private property without the consent of the property owner or without authorization a class C misdemeanor. A person committing a class C misdemeanor is subject to up to three months imprisonment, up to a $ 500 fine, or both.

Under current law, an authorized harbormaster must determine whether a vessel is a derelict vessel. The DOT commissioner, the harbormaster, or an authorized municipal representative may have the vessel removed at the owner's expense and may recover the cost upon the determination that it was abandoned. The bill instead specifies that the removing authority (1) determines if a vessel is abandoned, (2) may have it removed at the owner's expense if so, and (3) may recover the cost. By law, the vessel's last owner of record is responsible for the vessel. The bill eliminates a provision allowing the DOT and DEP commissioners to consider the abandonment as encroaching on dredging laws.

The bill requires the chief executive official of each municipality to provide the DEP commissioner the name, title, and contact information of his or her removal authority designee. The DEP commissioner must develop a training program for people responsible for removing abandoned vessels under the bill, within available appropriations.

Notice. The law requires the notification of a derelict vessel owner, his agent, or operator to allow for its removal. The notice must state that the person has 24 hours before the vessel will be removed, taken into custody, and stored at his or her expense. The bill gives the owner, his or her agent, the operator, or person or entity that has filed a legal or equitable interest claim in the vessel with the secretary of the state 72 hours instead of 24. The bill specifies that the notice is to be sent certified mail, return receipt requested, and must inform the person that removal, custody, and storage is possible.

Under current law, before removing a derelict vessel, the DOT commissioner, an authorized harbormaster, or a duly authorized representative of a municipality must affix a readily visible notice to the vessel. The notification sticker must state:

The bill specifies that the removing authority must affix the sticker and changes the time to 72 hours.

Under the bill, the removing authority must provide a notice, similar to that for removing such a vessel from navigable waters and establishes a hearing process like that for navigable waters, and makes municipalities and political subdivisions liable as outlined above for removal of such vessels from navigable waters.

Proceeds. Unlike removal from navigable waters, the bill requires proceeds, if the owner or other party does not claim the proceeds remaining from a vessel sale after required payments have been made, to be deposited into the boating account in the state Conservation Fund. Under the bill, such an abandoned vessel in state waters or on public or private property cannot be sold under these provisions until a final decision has been rendered in response to a hearing requested by an owner, his or her agent, an operator, or any person or entity that has filed with the secretary of the state claiming a legal or equitable interest in the vessel

The bill provides that if no one purchases the vessel at the public auction, the removing authority may either retain or dispose of the vessel. If the removing authority retains or disposes of the vessel because no one purchased it at the public auction, the owner, owner's agent or operator of the vessel remains liable for the satisfaction of security interests filed with the secretary of the state, all expenses incurred by the removing authority for the custody, removal and storage of the vessel, and any fines imposed.

The bill eliminates a provision allowing the DOT commissioner to require an owner, agent, or operator to furnish a performance bond in an amount sufficient to cover the estimated costs of removal as the commissioner determines.

Reimbursement. Under the bill, a removing authority that incurs expenses in carrying out these provisions is entitled, at the DEP commissioner's sole discretion, to reimbursement from the boating account, including funds collected under these provisions, for up to 90% of the actual costs incurred by such removing authority, when the owner of the abandoned vessel is either (1) unknown after a reasonable search effort or (2) is insolvent. The removing authority is responsible for at least 10% of actual costs. The DEP commissioner determines the reimbursement, if any. The DEP commissioner may adopt regulations to establish procedures for submitting requests for reimbursement, within existing appropriations, and criteria for allocating such funds.

Reports. The bill requires the removing authority to designate a suitable person to collect data concerning abandoned vessels, and prepare, and submit periodic reports to the DEP commissioner. The reports require information the commissioner may require.

Liability. Municipal liability is the same as discussed above.

RETAINING OR REGISTERING AN ABANDONED VESSEL (§ 12)

The bill allows a private property owner to retain or register a vessel in his or her name if the vessel has been abandoned on the property for more than four months and after fulfilling the bill's requirements.

To retain or register a vessel, the private property owner must request the authority that would remove it to make a determination regarding whether the vessel is abandoned and to issue a determination report. The report must include, in addition to the determination regarding whether the vessel is an abandoned vessel, the name and contact information of the last owner of record of the vessel and any known or reasonably discoverable identification information regarding the vessel.

Upon determining that the vessel is abandoned, the removing authority must affix a readily visible notification sticker to the vessel. The notification sticker must contain the following information:

No later than two weeks after the determination, the private property owner must make a reasonable attempt to notify the vessel owner or the owner's agent and any person or entity claiming a legal or equitable interest in the vessel with the secretary of the state and must allow the owner, owner's agent, or person or entity claiming a legal or equitable interest to make arrangements for the vessel's removal. The notification the property owner sends must be by certified mail, return receipt requested, and must inform the vessel owner, the owner's agent, or the person or entity claiming a legal or equitable interest in the vessel that, under the bill, if the vessel is not claimed and removed no later than 30 days after the notification, the private property owner may retain the vessel or register the vessel in his or her name. The private property owner must send a simultaneous notice of intent to retain or register the vessel to DEP and DMV commissioners. The bill requires the DEP commissioner to make reasonable efforts to determine if the vessel was stolen upon receipt of the notice of intent to retain or register. She must notify the private property owner and the DMV of her determination.

If the vessel owner or the owner's agent is unknown, the private property owner must place a notice providing the following information in a newspaper published or having a circulation in the town where the vessel was abandoned. The property owner must place the notice at least twice during the two-week period following the notice he or she must send. The newspaper notice must contain (1) a description of the vessel, including any identifying numbers or markings; (2) the location where the vessel was found; and (3) a statement that if the vessel is not claimed and removed no later than 30 days after the date of the second newspaper notice, the private property owner may retain the vessel or register it in his or her name.

If the private property owner has complied with the bill's notice requirements and the vessel remains abandoned on his property after completion of the four-month period, the owner may either: (1) retain the vessel or (2) apply to DMV to register it in his or her name, on forms DMV provides. The private property owner must provide the following information to DMV in an affidavit, with proof that:

DMV must register the vessel to the applicant when it receives the affidavit and any fees and taxes due.

A removing authority may retain or register a vessel abandoned on the removing authority's property by proceeding in the same manner as a private property owner under the bill.

FEDERAL REGULATIONS (§§ 4-5)

The boating safety and equipment requirements that the bill replaces with federal ones address:

With respect to navigation lights, the bill allows sailboats and power-driven vessels to comply with applicable federal or international regulations. Current law allows them to comply with applicable state requirements or international regulations.

BOATING ACCIDENT NOTIFICATION (§ 6)

Under current law, when two or more vessels are involved in a collision, accident or other casualty, the operator of each, so far as he or she can do without danger to his or her vessel or to its crew or passengers, must assist the other vessel, its operator, crew, and passengers as may be feasible and necessary to save them from danger caused by the collision. The vessel operator must stay by the other vessel until he or she has determined that there is no need of further assistance. Each vessel operator involved must also give the other operator his or her name; address; and the identification number, if any, of his or her vessel. Under the law, an operator's failure to comply with these requirements, unless reasonable cause for such failure is shown, is evidence that on its face the collision was caused by his ore her wrongful act, neglect, or default.

Under the bill, each vessel operator who is knowingly involved in an accident that causes serious physical injury or results in another person's death must stop immediately so far as possible without danger to his or her vessel or to its crew or passengers, and assist as feasible and necessary the other vessel, its operator, crew and passengers to save them from danger the accident caused. As under current law, the vessel operator must stay by the other vessel until he or she has determined that there is no need of further assistance. The bill requires each vessel operator to also give his or her name; address; and vessel identification number, if any to the operator of the other vessel, the person injured, any law enforcement officer, or any witness to the accident. By law, “serious physical injury” means physical injury that creates a substantial risk of death or causes serious (1) disfigurement, (2) health impairment, or (3) bodily organ function loss or impairment.

Under the bill, if the operator of the vessel that caused the death or serious physical injury is unable to give the operator's name, address, and identification number to those required under the bill, for any reason or cause, he or she must (1) immediately report the death or serious physical injury of any person to the nearest law enforcement agency having jurisdiction over the accident and (2) state in the report the location and circumstances of the accident causing the death or serious physical injury and his or her name; address; and vessel identification number, if any.

The bill makes anyone who violates these notification requirements guilty of a class D felony. By law, a person committing a class D felony is subject to from one to five years imprisonment, a fine of up to $ 5,000, or both.

The bill establishes the same procedures and notification requirements for accidents that physically injure a person or damage property, including notification to those injured or whose property was damaged. But it makes anyone who violates these requirements guilty of a class A misdemeanor. By law, (1) “physical injury” means impairment of physical condition or pain and (2) a person committing a class A misdemeanor is subject to up to one year imprisonment, a fine of up to $ 2,000, or both.

SAFE BOATING AND PERSONAL WATERCRAFT CERTIFICATES (§§ 7 & 9)

By law, anyone operating a vessel in the state must generally have a valid U. S. Coast Guard vessel operator license or DEP-issued safe boating certificate. The bill prohibits anyone in constructive control of a vessel from knowingly allowing someone age 16 or younger who is required to have a safe boating certificate to operate the vessel on state waters without such a certificate, with one exception. A person age 16 or less may operate a vessel if he or she is under the direct onboard supervision of someone at least age 18 who (1) has received a safe boating certificate and (2) has held the certificate for at least two years.

Similarly, the law requires anyone operating a personal watercraft to have received a DEP-issued personal watercraft operation certificate. The bill however prohibits anyone in control of a personal watercraft from knowingly allowing anyone age 16 or younger who does not have a certificate from operating a personal watercraft on state waters.

The bill shortens from six to three months the validity period of a temporary safe boating and personal watercraft operation certificate. The law allows the owner of a newly purchased new or used vessel or personal watercraft to apply for and receive a temporary certificate from DEP when registering such a vessel or personal watercraft. The timing of such a certificate begins at the time of registration, as under current law. The law requires a person registering such a personal watercraft to have completed safe personal watercraft handling course to receive the temporary certificate. The law prohibits anyone from receiving more than one temporary boating or personal watercraft certificate.

The bill requires DEP to issue a personal watercraft operation certificate to any applicant who provides proof that he or she has:

COMMERCIAL RENTAL OF VESSELS, INCLUDING PERSONAL WATERCRAFT (§ 10 & 11)

The bill defines “boat livery” as a business engaged in the commercially renting vessels, including personal watercraft.

By law, a liveryman or woman must keep a record of the name and address of every person who rents a vessel; its registration number, if applicable; the departure date and time; and the expected time of return. The liveryperson must preserve the record for at least one year. Under the law, neither the owner nor any agent or employee of a boat livery may permit any rented vessel to depart from the livery premises unless it is provided, either by the owner or lessee, with safety devices and equipment as the law may require. By law, violations are an infraction.

Under the bill, any operator of a vessel rented from a boat livery must carry with him or her on board the original or a copy of the written rental agreement for the rental. The agreement must state the rental period, the identity of the person who rented the vessel, and the vessel number which appears on the certificate of number, if required. By law, to operate certain vessels on state waters, owners must hold a valid (1) certificate of number from Connecticut, another state, or the U. S. government that is displayed on each side of the vessel or (2) marine document issued by the U. S. Coast Guard. The law requires that all boats with motors, regardless of size, and sailboats 19. 5 feet or longer (powered only by sail), be registered with the DMV and numbered before launching.

The bill requires the vessels' boat livery agents or employees rent, which will leave dock, to be registered and numbered properly, if required by law as above.

The bill prohibits a boat livery owner or any agent from allowing a rented vessel operator to depart from the boat livery without a safe boating certificate or certificate of personal watercraft operation, when required (for rental periods longer than 14 days). By law, a person can operate a rented vessel, other than a personal watercraft, which is rented for a period of 14 days or less. People or organizations engaged in the commercial rental of vessels must furnish each rental customer literature on safety and rules of navigation as supplied by the DEP commissioner.

BACKGROUND

Derelict Vessels

Current law establishes procedures for an official to take a derelict vessel into custody after 24 hours and move it to a place of storage. It also allows the official to sell it after a specific period of time has passed. The current procedures are similar those governing towing of an apparently abandoned or unregistered motor vehicles from public highways, but do not include a provision for a hearing to contest the validity of the seizure or the sale.

COMMITTEE ACTION

Environment Committee

Joint Favorable Substitute