Washington State Derelict Vessel Post-Sale Liability

[cstevens]

So I was reading this article in Professional Boatbuilder about the Sea Scout vessel Charles N. Curtis

https://www.proboat.com/2022/07/a-long-life-of-service/

and one passage stood out:

by state law, the Boy Scouts could be on the hook for proper disposal if a subsequent owner abandoned or wrecked the boat in Washington State.

I knew that WA has a derelict vessel program but I wasn't aware of the liability issue, so I looked it up and sure enough there is a post-sale liability attached to certain vessels:

https://apps.leg.wa.gov/rcw/default.aspx?cite=79.100.150

In my non-expert interpretation it seems to state that the owner of any registered vessel longer than 35 feet and more than 40 years old MUST obtain an inspection from a qualified marine surveyor prior to sale. If the inspection determines that the vessel is not seaworthy and the costs to return the vessel to seaworthy status then the owner MUST repair the vessel or sell it for scrap only. If the seller does not do those things they remain liable for cleanup and disposal costs even after sale and transfer of title. There does not appear to be any time limit on this liability. It remains in effect until the boat is sold again to a third party.

The Sea Scouts are planning to scrap the Charles N. Curtis due to this regulation. Which is sad but entirely understandable. I think that if more wooden boat owners in WA were aware of the liability then many more boats would be headed for the chainsaw right now. Or is this common knowledge and I'm the only one in the dark?

[wizbang 13]

Re: Washington State Derelict Vessel Post-Sale Liability

gentrification

on a par with holding gun manufacturers liable for shootings

Woodwind is one year younger and one foot shorter for qualification ,so this is sobering.

[Gordon Bartlett]

Re: Washington State Derelict Vessel Post-Sale Liability

gentrification

Woodwind is one year younger and one foot shorter for qualification ,so this is sobering.

The difference, of course, is that Woodwind has not been inspected and deemed unseaworthy.
This law seems aimed at those unscrupulous owners who, upon realizing that their neglect has turned their boat into a giant liability, sweet talk some naive dreamer into buying their 60 foot hulk for $300.
We've heard such tales right here on the forum. It rarely ends well.

[cstevens]

Re: Washington State Derelict Vessel Post-Sale Liability

gentrification

on a par with holding gun manufacturers liable for shootings

Woodwind is one year younger and one foot shorter for qualification ,so this is sobering.

The difference, of course, is that Woodwind has not been inspected and deemed unseaworthy.
This law seems aimed at those unscrupulous owners who, upon realizing that their neglect has turned their boat into a giant liability, sweet talk some naive dreamer into buying their 60 foot hulk for $300.
We've heard such tales right here on the forum. It rarely ends well.

Personally, I don't disagree with the policy. While it does seem like an encroachment on our freedom to mess about with old boats, I also think that every derelict environmental disaster and hazard to navigation foisted on the public by foolhardy and negligent owners does far more damage. It's not very far from "you are responsible for making sure your vessel is seaworthy if you are going to moor and operate it on our waterways" (which is not really much to ask) to "we are tired of cleaning up your messes so wooden boats are now entirely banned from our waterways". So I'm willing to accept a considerable amount of regulation aimed at ensuring seaworthiness in order to avoid a complete prohibition.

But the thing that strikes me about the policy is that it moves the burden of inspection from the buyer to the seller. Previous to this legislation it was up to the purchaser to arrange and pay for a survey, and to accept or decline the deal based on the results. The secondary liability provision means that it is now up to the seller to conduct the survey and to address any recommendations before they are allowed to sell the boat. That's a huge change. The concern with Woodwind isn't that she could be unseaworthy, but that if Bruce were to sell her without getting a survey first he would be liable regardless of her condition.

(I'll admit that I don't know all of the liability issues involved in selling a boat, and there may be other cases where a seller had some continuing liability in the past, but I think in general people assume that it's caveat emptor on the high seas).

We are helping a friend sell a large wooden Chris Craft. It's a sad story. Her husband was killed in a hydroplane crash last year and she is left with this boat to deal with. She really just wants it gone but given the liability issues she can't just sell it. She needs to have it surveyed and if the survey comes back with significant recommendations she would have to have the work done or scrap the boat. It's a pretty nice old Chris as far as I can see from the photos but it's not a show winner, and big old gas-powered cruisers aren't worth much. It would not take much in the way of needed work to trigger the "exceeds the value of the boat" clause.

I will also say that as soon as I read the statute I quickly checked the LOA of Petrel. We transferred her to her new owner as-is with no inspection. Fortunately she is a foot shorter than the cutoff, at 34', so the statute does not apply. Phew!

[J.Madison]

Re: Washington State Derelict Vessel Post-Sale Liability

It seems absurd to me. Boat owners are forced to pay for a survey before selling the boat? Imagine if this was the case for houses.

The new owner should be liable if they abandon the boat, unless they can show that they were somehow misled by the seller at which point they could be liable.

Also, what does "seaworthy" mean? Seems like some poorly thought out legislation.

Does this make it illegal to sell a project boat? Tally ho?

Or if you sell a project boat, the new owner has a blank check to dump it in front of the marina at any point in the future and you will be liable? Absurd.

[cstevens]

Re: Washington State Derelict Vessel Post-Sale Liability

It seems absurd to me. Boat owners are forced to pay for a survey before selling the boat? Imagine if this was the case for houses.

The new owner should be liable if they abandon the boat, unless they can show that they were somehow misled by the seller at which point they could be liable.

Also, what does "seaworthy" mean? Seems like some poorly thought out legislation.

Does this make it illegal to sell a project boat? Tally ho?

Or if you sell a project boat, the new owner has a blank check to dump it in front of the marina at any point in the future and you will be liable? Absurd.

Jon, I don't disagree that the regulation has the potential to affect things like restoration, etc. (although there are some provisions for that - see below). But I think the comparison with houses is not entirely relevant. I don't think there is a real problem with people abandoning houses in ways that burden society. Not that it couldn't happen, but it's not a normal stage in the lifecycle of a building. With boats on the other hand, and particularly with older wooden boats, it is all but inevitable that the boat will become unseaworthy and derelict if it is not maintained. Boats get ignored by people who cannot afford to maintain them, are abandoned at their moorings, and sink all too frequently, leading to a real cost for disposal and environmental cleanup. It happens all the time. We know that it does. We lament those events regularly here on the forum.

The other thing that happens is that old boats that are not maintained quickly reach a zero or near-zero value. At which point they are sold for little or nothing to people with even less ability to care for them than the seller. Again we see this all the time. I could list half a dozen hapless (although always eager) victims of this scam. Anyone remember boatnoob? And once the new owner realizes that they are way over their head they walk away, leading to the inevitable denouement.

So, where is the fault and liability here? The new owner is still absolutely liable and the state will definitely come after them to recover the costs of cleanup. But the reality is that if they got the boat for pennies they likely have no way to pay so that's a lost cause. The question then is whether the seller should be able to duck all liability simply by finding a sucker to take it off their hands. And here I am completely on the side of the regulation. I do not think that someone should be allowed to pawn off their soggy old tugboat on some hopeless dreamer for a dollar and a bill of sale and walk away without any responsibility to handle their mess. I hate it every time it happens.

It's worth reading the actual regulation. Among other things it states:

...the vessel owner may not sell or transfer ownership of the vessel unless:

(a) The vessel is repaired to a seaworthy state prior to the transfer of ownership; or

(b) The vessel is sold for scrap, restoration, salvage, or another use that will remove the vessel from state waters to a person displaying a business license issued under RCW 19.02.070 that a reasonable person in the seller's position would believe has the capability and intent to do based on factors that may include the buyer's facilities, resources, documented intent, and relevant history.

Meaning that as the seller you either have to make the boat seaworthy, or sell it in such a way that it will be removed from the water until it is scrapped or made seaworthy. Project boats can be sold as-is, but they have to be sold to someone with a reasonable capacity to do the work. Honestly that doesn't seem like a bad thing to me?

And as to the definition of seaworthy, the regulation turns that decision entirely over to a qualified marine surveyor. Which is as it should be in my opinion. It doesn't try to establish a regulatory definition of "seaworthy" and it doesn't need to. We already have a significant body of practice around determining seaworthiness. We just need to apply it.

My point in posting this thread is not any concern with the regulation itself. There are no perfect laws but this one seems to walk a fine line between public good and unreasonable constraint. But it does have a pretty huge impact on how we should approach the sale of any older boat here in Washington so it's worth knowing about.

[J.Madison]

Re: Washington State Derelict Vessel Post-Sale Liability

I think it will kill many boats. You can apparently only sell a project boat to a licensed pro, and they will never buy them. There goes the rest of the old trollers. There goes many old boats. What if I want to buy a project? No legal way to do it? I apparently could not sell Julia without paying for a survey and being subject to whatever some surveyor says about it. Then the buyer would do a survey too presumably? That is a lot of travelift time. How about the Ingrid Pelin that was for sale recently? Apparently illegal as I think she had a few issues. So do most boats.

The owner should be responsible, period. I also think the public burden is being over stated, especially as it relates to wooden boats. Most derelicts would not be covered by this anyway.

Having an indefinite liability for something you sold long ago is absurd to me. Protecting the public from new owners who don't know much is not worth killing all the historic boats that are about to get the chainsaw because of it. Old wooden boat values are bad enough without this nightmare added on.

Edit: Am I reading right that this is a law from 2013? Not being enforced maybe? Never heard of it before now.

[cstevens]

Re: Washington State Derelict Vessel Post-Sale Liability

I absolutely agree that this regulation, if it were more widely heeded, would kill many boats. It is already doing so in some cases. See this thread

https://forum.sailboatdata.com/t/for-those-in-wa-how-did-this-happen/1621/2

I do not love that thought. I would hate to see the Charles N. Curtis cut up, for example, just because of the liability. But realistically I think most of the boats that would be affected by this regulation are going to be scrapped within the next ten to twenty years anyway. Take the old trollers as an example. I don't see any chance that more than a token handful will survive once the current generation of caretakers ages out of that role. There are just not enough people with the skills and inclination to maintain, much less restore, a big old wooden boat. So what's the right thing to do? Just let those boats be sold on to people who buy them because they are cheap or free, and then let them sink because the buyers have neither the money nor the skills to care for them?

The regulation states that a buyer of an unseaworthy boat for restoration must be someone with "the capability and intent to [restore the vessel] based on factors that may include the buyer's facilities, resources, documented intent, and relevant history." Is that an unreasonable expectation? That's exactly the criteria I used when I was looking for someone to take on Petrel. I would not have passed her on to anyone who did not meet those requirements. But I was absolutely flooded with responses from people with zero knowledge or abilities who wanted to live aboard her. I could easily have just transferred her to the first person who responded regardless of their capabilities. We can debate whether I should have the right to do that, but if I had I doubt Petrel would survive for very long. Selling old boats to inexperienced dreamers with no money is not much of a preservation plan.

I think the real problem with the legislation isn't the seaworthiness inspection requirement or the secondary liability, but that there is no definitive process for releasing liability in the sale of an unseaworthy boat. It's up to the seller to decide whether the buyer fits the "capability and intent" criteria. And presumably there would be a legal burden on the seller to prove capability and intent if the boat later becomes derelict and the new owner cannot pay for recovery and disposal. So an entity like the Boy Scouts would certainly prefer to scrap a boat which has little or no value rather than accept the liability.

I do hate this regulation but not because I think that creates an unreasonable burden. I hate it, and all similar laws, because they wouldn't be needed if people would act responsibly. We wouldn't need laws prohibiting the discharge of oil into the water if people would just not do it. But they will so we do. Do we need a law protecting the public from derelict vessels? I don't know what the real public burden is but it's not zero. Many, many old boats sink from neglect just here in Washington. Just off the top of my head I can think of a few. Avalon, a seiner that went down in Pleasant Harbor. Argosy, broke free of her mooring and ended up on a beach. Pickle, an Ed Monk cruiser sank at her mooring in Shilshole. Hero, a former research vessel, sank at her mooring in Willapa Bay causing an oil spill which still threatens the oyster beds in that area. I'm sure there are many hundreds of others.

I don't know what the answer is. Maybe this law is not the right approach. But I don't think that simply ignoring the problem is a good way to ensure the preservation of old boats.

[wizbang 13]

Re: Washington State Derelict Vessel Post-Sale Liability

What is the answer to homelessness ?
Is this not driven by homeless people discovering boats ? in part anyway.... homelessness does not account for vessels like Hero, Avalon, Curtiss of course.
The "marina" in Lakebay was cleared out recently, this past winter. The south sound has at least 3 "ghost" vessels cruising around on their own now. I see a certain 30'fg sloop self anchoring from Budd inlet to Ketron Island, high water and wind takes em to a new mystery unmanned waypoint.
There are 4 or 5 extra ,sketchy lookin craft in Gig this past winter. The Gigstapo will clear them out soon enough. I may be swept up with em.
or, is it the whitepeopleonthehilldontwannalookatfunkyboats..a phenom i see everywhere .
or jus too many people reaching for that piece o cake ?
or...sometimes its a good time to scrap a boat.

[cstevens]

Re: Washington State Derelict Vessel Post-Sale Liability

What is the answer to homelessness ?
Is this not driven by homeless people discovering boats ? in part anyway.... homelessness does not account for vessels like Hero, Avalon, Curtiss of course.
The "marina" in Lakebay was cleared out recently, this past winter. The south sound has at least 3 "ghost" vessels cruising around on their own now. I see a certain 30'fg sloop self anchoring from Budd inlet to Ketron Island, high water and wind takes em to a new mystery unmanned waypoint.
There are 4 or 5 extra ,sketchy lookin craft in Gig this past winter. The Gigstapo will clear them out soon enough. I may be swept up with em.
or, is it the whitepeopleonthehilldontwannalookatfunkyboats..a phenom i see everywhere .
or jus too many people reaching for that piece o cake ?
or...sometimes its a good time to scrap a boat.

I kinda think all of the above Bruce. And also that there are no perfect answers to any issue that pits personal freedom against public burden. If you want to have an argument in Seattle just mention tent encampments. But I'm not trying to split the baby on the drift-aboard situation. I'm more concerned with how the secondary liability affects the fate of old wooden boats and the people who own them. I agree with Jon that the regulation is going to force a lot of boats to be cut up. Many of those boats probably should be scrapped but I also think it will kill some boats that might otherwise have been saved.

Skookum Maru is a good example here. She needed to be refastened when we bought her. If we had gone to John Thomas or one of the other full-service Seattle shops for a quote on refastening I'd bet that the cost would have exceeded her value by a good margin. Both we and the seller were committed to having the work done and we had other resources and options available, but with another buyer and seller the outcome might have been different. It doesn't take much of a stretch to see her in a land fill right now rather than about to head north for another season of cruising. The schooner Red Jacket was also lucky to find a new owner with the resources to care for her. I don't know the full story but I'd bet that she came very close to being cut up back in 2019. That would have been a huge loss. I expect that the Ted Geary fantail Creole will be cut up at some point soon. She's just sitting at Fishermen's Terminal right now, full of bleeding iron nails and rot.

I expect there have been and will be many more boats like these. But while liability might be a factor in some cases I think the cost of restoring and maintaining wooden boats is the real challenge. At one point I saw a $500k estimate for the work needed on Red Jacket. Western Flyer and Tally Ho will both certainly run well into seven figures. Those are large, historic boats but even just a little troller like Petrel would easily have been a $100k project if I had to pay Seattle rates to have the work done in a yard by a professional crew.

One interesting note, however. It turns out that before 2013 the secondary liability clause applied to boats longer than 65'. The current law just reduced the length from 65' to 35'. So it's not that new. See https://www.dnr.wa.gov/derelict-vessels

[Garret]

Re: Washington State Derelict Vessel Post-Sale Liability

Whatever happened to caveat emptor? Or personal responsibility? Stoopid.

When I sell a car, it is sold "As is, where is, and carries no warranty expressed or implied". I've also added "This vehicle is not safe for the road at the time of sale". Why wouldn't something like that be valid on a boat?

[Yeadon]

Re: Washington State Derelict Vessel Post-Sale Liability

Are there other laws like this in place with similar logic? Selling a plot of land that you spoiled with chemicals perhaps? Boats seem more like cars though, and “as is where is” remains the type of deal that I’m most use to when it comes to a sale.

I will go back and read the statute itself.

[cstevens]

Re: Washington State Derelict Vessel Post-Sale Liability

I think it's reasonable to debate the value of this regulation. I tend to agree with the objective. I am not too concerned with the burden on the seller. I dislike the implications for the preservation of old boats. Other people may reasonably have a different view. But before we say it's "absurd", or "stoopid" (how many Os should I put in that word Garret?) or "just like selling a car" I'd say...



and



and



Old boats are not like old cars and old houses. If your old car is not roadworthy it might become a nuisance but it is not likely to be a threat to public safety or to the environment. And if your local municipality has to tow away your car or take possession of your abandoned house there is no significant cost to do so. Setting aside the liability issue, does it really seem unreasonable to require that a boat be sold in seaworthy condition, or to someone who can realistically be expected to make her seaworthy?

[Garret]

Re: Washington State Derelict Vessel Post-Sale Liability

On this one, about 5 or 6 Chris...

Forgive me for using the term, but this is the nanny state in action. IMO, if you can't handle it, don't buy it. I'll use my boat as an example, as it'd fall under this law. Who defines "seaworthy"? Suppose some idjut buys Neoga, doesn't check the clamps on the seacocks, takes her out & she sinks. I'm to be liable for that? BS I cry.

[cstevens]

Re: Washington State Derelict Vessel Post-Sale Liability

If that was the actual effect of the law I would agree with you, but it's not. The seller is only liable if they don't get a marine surveyor to attest to the condition of the boat prior to transferring ownership. And I don't think it's a nanny state regulation at all. The point is not to protect an individual from the consequences of their decisions, but to protect the public from the consequences. In my view that's what a good law should do. We want drivers to prove that they can control a car before we let them on the road. We want ships to have enough lifeboats for all passengers. We want the crew of our airplane to be suitably trained and qualified. We want our water to be clean, our bridges engineered correctly and our buildings to not fall down. Do regulations of these things create a "nanny state"? How is it any different to require that the owner of a boat take steps to ensure that it does not become derelict?