One of the most frequently asserted defenses in cruise ship litigation, not only by Holland America, but also by regional cruise lines, sightseeing vessels and whale watching boats is the “rogue wave” defense.I thought attorney's language should usually be scrupulous and factual, but this short article is full of holes!
Rogue or “sneaker” waves are a natural phenomenon. They are waves which are unexpected and, definitionally, at least three times bigger than other waves in the vessel’s vicinity.
There is significant debate whether a defendant can avoid liability because the vessel was struck by a rogue wave. Rogue waves have been acknowledged for hundreds if not thousands of years. They’re clearly foreseeable.
But even if defendants could legitimately defend on the unexpected nature of rogue waves (which can be caused by a variety of factors), any validity associated with this defense has been destroyed by its gross overuse by defendants.
The “rogue wave” defense has been contorted by defense attorneys to the point that it is no longer recognizable. In almost every case where passenger falls and is injured because of defendant’s operation of a vessel and/or the nonexistent safety precautions like railings and handholds, the defense invariably interposes the “rogue wave” defense.
In these situations defendants argue, essentially, that the rogue wave that caused the vessel to lurch, roll or yaw was an act of God and that they shouldn't be held responsible.
Waves are foreseeable. Rogue waves are foreseeable. Vessel owners and operators need to anticipate rogue waves and safeguard their vessels.
First of all he made up a definition of "at least three times bigger than other waves in the vessel’s vicinity" which is a total unknown from the academic point of view, if not sheer nonsense. That's why I think he made it up.
Next he contends that "Rogue waves have been acknowledged for hundreds if not thousands of years." Acknowledged by whom? Sea farers, maybe. But certainly not the academic world.
And he says: "They're clearly foreseeable." That must be a lawyer's term. Because it is meaningless in the scientific research world. What is foreseeable? Everything is foreseeable to a certain extent. Or nothing is foreseeable until it actually happens.
Next the sentence ". . . “rogue wave” defense has been contorted by defense attorneys to the point that it is no longer recognizable" clearly identifies the author on the same side of "ambulance chasers" in objecting to the defense that freaque wave is "an act of God."
Scientists don't want to invoke "an act of God" thing in science either. But there are clear reality and limitations in our knowledge to cope with natural phenomena.
Freaque waves are unexpected, unpredictable, and unknown at the present as to where, when, how, and why they occur in the open ocean -- even though we are certain that they are happening out there somewhere, sometime, somehow, whether or not a cruise ship or seafarers are nearby to encounbter them.
I think the author is misplacing his priorities. instead railing against the act of God defense, I wish he could choose to admonish the ship builders, cruise ship owners, and the like to encourage and invest in tangible further meaurement and research in freaque waves phenomena to make the phenomena more than just foreseeable, but truly forecastable, understandable, and predictable!