Benjamin

CHARLESTON – Federal maritime law does not govern whitewater rafting in West Virginia, the state Supreme Court has ruled.

On Dec. 10, the Justices granted a writ of prohibition against Circuit Judge Thomas Steptoe, who would have applied maritime law in a Jefferson County trial over a fatal rafting accident.

"Whitewater rafting is a recreational activity where participants seek the adventure of paddling a rubber raft in rapidly moving whitewater streams and rivers," Justice Brent Benjamin wrote.

"Such use of streams and rivers carrying people, not as traveling passengers, but rather as participants seeking adventure, makes it difficult to conceive that whitewater rafting bears a substantial relationship to traditional maritime activity."

The decision pleased the West Virginia Professional Outfitters, who argued as friends of the court that application of maritime law would destroy their industry.

The outfit that won the decision, River Riders Inc., still faces a difficult day in court because the Justices refused to honor releases the passengers signed.

On Sept. 30, 2004, River Riders guide Matthew Knott took managers of a Washington area business and guests down the Shenandoah River in four inflated rafts.
The river, normally two to four feet deep in autumn, had swelled to 12 feet after a storm. The current overpowered the rafts and dumped the passengers into the river.

Passenger Roger Freeman drowned, and 13 others suffered injuries.

Widow Kathy Freeman sued River Riders and Knott in Jefferson County. The injured passengers filed a separate suit against River Riders.

Plaintiffs in both suits contended that River Riders failed to meet the standard of care set by the West Virginia Whitewater Responsibility Act of 1987. River Riders should have cancelled or rescheduled the expedition, they argued.

In response, River Riders produced agreements declaring that passengers assumed all risks and released River Riders from any and all liability.

Freeman moved to exclude her husband's release agreement at trial, and Steptoe granted the motion this Jan. 30.

The big plaintiff group also moved to exclude the releases, urging Steptoe to apply federal maritime law that disregards releases.

Steptoe set an April 10 deadline for River Riders to oppose application of maritime law, and on that date he received nothing from River Riders.

He ruled on April 15 that, "Assumption of the risk is not a defense in admiralty or maritime law."

"Because the incident occurred on the Shenandoah River, a navigable body of water, it is governed by general maritime law," he wrote, noting that he received no pleadings in opposition to the motion.

River Riders petitioned for relief on April 23, claiming it mailed a response on deadline instead of faxing it. Steptoe did not act on the petition.

On May 19, Steptoe granted a motion of the big group to consolidate their suit with Freeman's for a single trial.

River Riders petitioned the Supreme Court for a writ of prohibition vacating the orders of Jan. 30, April 15 and May 19.

River Riders argued that releases should count as evidence, that the Shenandoah River is not navigable, and that consolidation would confuse and prejudice jurors.

River Riders argued that if whitewater outfitters could not plead assumption of risk, insurers would refuse to cover them.

On that point, the Outfitters Association agreed.

The Justices could have turned River Riders away and awaited an appeal after trial, but the brief of the Outfitters Association highlighted the urgency of the case.

The Justices lacked a solid record, however, because River Riders didn't file a timely response and Steptoe adopted no findings of fact and conclusions of law.

The Justices chose to develop a record on their own, relying on a 1995 decision of the U.S. Supreme Court in Grubart v. Great Lakes Dredge and Dock Company.

Grubart held that a party invoking admiralty jurisdiction over a tort claim must satisfy conditions of location and connection with maritime activity.

The connection test requires a potentially destructive impact on maritime commerce and a substantial relationship to traditional maritime activity, Benjamin wrote.

"From its order, the circuit court appears to have only considered the first prong of the Grubart test," Benjamin wrote. "Applying the second prong of the Grubart test to the circumstances of the instant case, we find that the activity of whitewater rafting does not constitute traditional maritime activity and is therefore not governed by maritime law."

He wrote that "it is hard to envision how the act of whitewater rafting could have a potentially disruptive impact on maritime commerce."

The cases before the Court do not concern piloting, shipping, navigational error or other aspects of traditional maritime activity, he wrote.

"The requisite maritime connection is therefore missing," he wrote.

Chief Justice Spike Maynard reserved the right to file a concurring opinion.

Robert Martin, Justin Taylor and Jared Tully, all of Bailey and Wyant in Charleston, represented River Riders and Knott. So did Michael Barcott of Seattle.

Stephen Skinner and Laura Davis, of the Skinner Law Firm in Charles Town, represented Freeman.

Michael Smith of Baltimore and Mark Jenkinson of Martinsburg represented the big plaintiff group.

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