By Doyice Cotten

Harry Boldt chartered a fishing boat and signed a liability waiver. While on the trip, the boat hit an unexpected 8 foot wave that knocked Boldt from his seat causing injury (Boldt v. Taylor, 2022).

The waiver read:

I understand that the purpose of signing this document is to GIVE UP ALL of my rights to sue Reel Reaction Sportfishing LLC, and any of their EMPLOYEES, AND ALL OF ITS BOATS (WHETHER OWNED, OPERATED, CONTROLLED, BORROWED, LEASED, CHARTERED OR OTHERWISE) HEREINAFTER REFERRED TO AS THE RELEASED PARTIES AND TO HOLD THESE ENTITIES HARMLESS FROM ANY AND ALL LIABILITIES ARISING AS A CONSEQUENCE OF ANY ACTS OR OMISSIONS ON THEIR PART, INCLUDING BUT NOT LIMITED TO NEGLIGENCE OF ANY TYPE.

[…] I UNDERSTAND THAT THERE ARE INHERENT RISKS INVOLVED WITH BOATING, RISHING, AND WATER ACTIVITIES, including but not limited to equipment failure, perils of the sea, harm by marine creatures (including marine animal bites), acts of fellow participants, entering or exiting the water, injury from hooks or other sharp objects, loss of balance, slipping/falling, and/or motion sickness, and injuries caused by unpredictable weather and/or sea conditions, boarding or disembarking the vessel, injuries caused by fishing equipment, activities on the docks, and I HEREBY ASSUME EACH AND EVERY SUCH RISK WHETHER SPECIFICALLY LISTED HEREIN OR NOT WHETHER FORESEEABLE OR NOT. IT IS MY INTENTION THAT THIS RELEASE BE CONSTRUED AS BROADLY AS POSSIBLE AND IN FAVOR OF THE RELEASED PARTIES.

[…] IT IS MY INTENTION BY THIS INSTRUMENT TO GIVE UP MY RIGHT TO SUE ALL PERSONS OR ENTITIES REFERRED TO HEREIN, WHETHER SPECIFICALLY NAMED OR NOT, AND IT IS ALSO MY INTENTION TO EXEMPT AND RELEASE Reel Reaction Sportfishing llc, OPERATOR, OTHER ASSOCIATED PERSONNEL, and its boats (whether OWNED, OPERATED, LEASED, OR CHARTERED), AND TO HOLD THESE ENTITIES HARMLESS FROM ANY AND ALL LIABILITY FROM PERSONAL INJURY, PROPERTY DAMAGE, OR WRONGFUL DEATH CAUSED BY NEGLIGENCE OR GROSS NEGLIGENCE AND I ASSUME ALL RISK IN CONNECTION WITH FISHING, RIDING, AND ALL OTHER BOATING/FISHING ACTIVITIES, INCLUDING BUT LIMITED TO THE MAINTENANCE OF THE EQUIPMENT OR ORGANIZATION OF THIS ACTIVITY.

The first task for the court was to decide if the case fell under New Jersey law or federal Admiralty Law. In both jurisdictions, waivers of negligence are enforceable and waivers of gross negligence are not. In this case, it was decided that Admiralty Law was appropriate. Under Admiralty Law, to be enforceable, a waiver must be 1) clear and unambiguous; 2) not inconsistent with public policy; and 3) not an adhesion contract.

 Clear and Unambiguous

In this case, the plaintiffs did not claim ambiguity and the court held the waiver to be clear and unambiguous. It stated that a waiver is clear and unambiguous if it specifically bars the plaintiff’s negligence claim and explicitly exonerates all defendants in the lawsuit. In contrast, a waiver is ambiguous if “it is reasonably susceptible to more than one interpretation.”

The Plaintiff did not challenge the clarity of the Waiver language, but claimed there was “no discussion whatsoever about the release itself.” In that regard, Mr. Boldt claims that he does not remember the document, and, at the time of execution, he did not understand that he waived liability. The court responded that the waiver was clear, key points were emphasized and the word “negligence” was specifically mentioned. Further, the waiver was short and sufficient to put the reader on notice.

The court noted that “It is the general rule that where a party affixes his signature to a written instrument, such as a release, a conclusive presumption arises that he read, understood and assented to its terms and he will not be heard to complain that he did not comprehend the effect of his act in the signing.” The court concluded that the waiver was clear and unambiguous.

Public Policy

Under Admiralty Law, clauses waiving negligence liability are consistent with public policy. Waivers of gross negligence are against public policy, but since there is no evidence of gross negligence, there is no violation of public policy.

Contract of Adhesion

The court considered to claim of adhesion and stated that liability waivers for voluntary recreational activities are not adhesive contracts. Fishing is a voluntary recreational pursuit in which he chose to participate, thus the contract can’t be a contract of adhesion.

Ruling of the Court

The court ruled that the waiver was enforceable because it was clear, did not violate public policy, and was not adhesionary. The court granted summary judgment in favor of the defendant.

Photo Credit

Thanks to Sara via Flickr.