Yacht owner, booking agent granted summary judgment in lawyer's

An attorney who says his hearing was permanently injured during a Chesapeake Bay cruise with his law firm does not have a private cause of action against the booking agent or the yacht owner for violating a state law regulating noise levels, a federal judge in Baltimore has held.

U.S. District Judge Richard D. Bennett last week granted motions for summary judgment in favor of Annapolis Bay Charters and Imagine Yacht LLC on Jeffrey F. Lawrence's claim that the firing of a cannon on board the schooner Imagine during a passenger cruise was a violation of Maryland law.

Implying a private cause of action based on the noise levels statute would risk opening floodgates to a limitless array of actions that were not envisaged by the General Assembly's narrowly-defined statutory and regulatory scheme, Bennett wrote.

Attorney David W. Skeen, who represented booking agent Annapolis Bay, said it was clear that the noise statute did not apply to the case at hand. Section 8-725.4 of the Natural Resources Article, which prohibits the operation of a vessel on state waters at noise levels exceeding 90 decibels, was designed to curb speed and engine noise, he said.

It's not intended to give rise to civil liability, he added.

The Washington, D.C. firm of Sher & Blackwell contacted Annapolis Bay in September 2001 to charter a boat for a social outing. The broker arranged an excursion on the schooner Imagine, a 76-foot, gaff- rigged wooden schooner that sails the Chesapeake Bay.

The lawyers' three-hour tour ended not on a deserted island, but in court, after a small cannon was fired as part of a nautical tradition where one captain salutes another in a passing ship.

Although the Imagine crew warned passengers of the noise before firing, Lawrence - a partner in the firm who incidentally works with large maritime companies - was not in the vicinity at the time of the warning and came up on deck just as the cannon went off.

This was an eight- or nine-inch brass thing, an inch in circumference, that fires a shotgun blank, said Jonathan A. Cusson, who is representing Imagine Yacht. You tap it with a hammer and it goes boom.

Nevertheless, according to the opinion, Lawrence experienced immediate hearing loss and he and his wife brought suit in federal court in 2002 against the owner and the broker. Experts diagnosed the lawyer's hearing loss at less than 2 percent, Cusson said; Lawrence's attorney, Prabir Chakrabarty, said it was greater than this although he declined to give an exact number.

The type of work he does involves sitting in large conference rooms, Chakrabarty said. It has caused him a lot of problems [regarding] his ability to participate in meetings at work.

In addition to the noise level claim, Judge Bennett also granted summary judgment in favor of Annapolis Bay on the Lawrences' claims of negligence, breach of contract and loss of consortium, concluding that the booking agent had no obligations with respect to the plaintiffs.

The operational control of the boat was with the boat owner, not the charter broker, said Skeen, whose client is now out of the case entirely.

The tort and contract claims against Imagine Yacht will still go forward - as will Imagine's third-party complaint against Sher & Blackwell. A motion by the law firm for summary judgment - based on the theory that it was an improper third-party defendant as well as a claim that it bore no liability under the charter agreement - was denied.

As the charterer, [the firm] had certain responsibilities to provide for the safety of their own people, Cusson asserted. Because they heard the warnings, they had a duty to convey the message to the others in their group.

Counsel for Sher & Blackwell declined to comment on the case.

WHAT THE COURT HELD

Case:

Jeffrey F. and Donna Lawrence v. The Imagine-! Yacht LLC, et al., USDMD No. RDB 02-3224, Published. Opinion by Bennett, J. Filed Aug. 25, 2004.

Issue:

1) Does the plaintiff have a private cause of action for violation of a state statute regulating noise levels? 2) Can a plaintiff whose hearing was injured during a charter boat excursion sue the booking agent for negligence and breach of contract?

Holding:

No. 1) No private right of action will be inferred from a statute that was designed to confer a benefit on the public at large. 2) The broker owed no duty and the charter agreement imposed no obligations with respect to the plaintiff.

Counsel:

Prabir Chakrabarty for plaintiffs; David W. Skeen for defendant Annapolis Bay Charters; Jonathan A. Cusson for defendant The Imagine- ! Yacht; Eric N. Stravitz for third-party defendant Sher & Blackwell.

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