by Leandra Esfakis
Although statute may give government the duty and power to inspect and license boats etc, unless the statute provides a specific right to damages for it failing to carry out it's duty, there is no claim against the government, regardless of the fact that death and injury can result to users of those licensed boats when the boats fail to meet the statutory requirements.
The same principal would apply to say, the failure of the Hospital and Health Care Facilities Board, which licenses hospitals which do not meet the statutory requirement.
In both these instances, licensing bodies were put in place, one would think, for the protection of the public, and not just as another source of government revenue. However, the track record of government in these matters, appears otherwise.
I agree that the government/ the public purse should not shoulder the ultimate cost created by private individuals - the boat owners/ captains.
Those individuals went into the boat business for profit. They also take the risk of loss. This is the "loss" part of the equation.
However, there must be some responsibility and recourse for Govt's failure to act, when it had a duty to act.
I know how long, hard and expensive it is, to take on an "institutional" defendant, when you are an individual plaintiff - or even a group of individual plaintiffs.
How many plaintiffs, particularly after they have lost an income earner, or the ability to earn income after injury, can sustain that?
How can people of few resources - either in money, talent or time, do this? Very few. None?
Is the answer then to leave the injured to the mercy of the market, or charity? I support your idea of a fund, and I would contribute to it. But that is not the answer.
These people were injured through no fault of their own.
The government failed its obligation to the people. It allowed circumstances to exist which created a group of injured citizens who are marginalized, and not the productive people they could have been, or maybe could still be, with the right help, at the right time.
The government had a duty to do, and didn't do it. The public should have been protected, from unscrupulous operators, against the very thing that happened.
The Sea Hauler took on people it should not have, to make money it should not have been making in that way.
The people are now injured or dead, and very much less able to help themselves.
They need help now. Or 5 years ago.
The Gov't needs to provide them legal aid to take the boat owners/insurers/captains to court.
But, this is not satisfactory, insofar as the people need help now, and a legal settlement would be years off.
So my solution is this:
A Special Commission makes a calculation of the liability/damages, and the Government pays that settlement.
Then the Government subrogrates itself to the victims right of action, and goes after the boat owners/insurers/captains, until the govt is compensated, with interest and costs.
The matter should be put on an expedited track through the legal system.
If this requires getting judgment and enforcing it against the owners, their insurers, and /or the captains (if the owner is not vicariously liable for the capitan's negligence), so be it.
(What surprises me, is that there have been no charges of gross negligence manslaughter brought against these individuals. Our lack of accountability really is far-reaching.)
The net result of this is:
The victims are compensated, the Govt takes responsibility for its failure to do its statutory duty, by applying its legal resources, but it recovers the public's money expended in the matter from the private individuals who should have paid in the first place.
If the Government has to use its legal resources ( The AG's staff) , to recover money that it has paid out for injuries resulting from its failure to carry out its duty, maybe there will be pressure on the various govt boards, depts, and agencies, to carry out their duties, and we will have something like a rule of law happening.
And it will be safer place.
This could be a concept whose time has come.
