FORENSIC NAVAL ARCHITECTURE
Forensic naval architecture is investigative naval architecture for the benefit of the courts. Like other investigative specialists, a forensic naval architect is called an expert witness by the courts. Expert witnesses are required to explain complex technical issues so that judges and juries can understand what the case is about in order to reach a verdict. Many times, the findings of expert witnesses lead to a settlement before the case goes to trial.
My work as a forensic naval architect started in 1983, just at the US was losing the America's Cup for the first time. I was in Miami at a conference, and I received a telephone call from an attorney in Florida who needed a naval architect to explain fiberglass boatbuilding techniques in defense of a production sailboat builder against a disgruntled owner. After a chain of recommendations from one professional to another, the attorney ended up on my telephone. Long story short, this attorney coa ched me through the case which culminated in court with a favorable verdict for the boatbuilder. This attorney and I went onto a number of cases together in the following years. There have been wins and losses--one attorney told me that you haven't really cut your teeth as an attorney until you have lost your first million-dollar case.
Long story short, this attorney coa
ched me through the case which culminated in court with a favorable verdict for the boatbuilder. This attorney and I went onto a number of cases together in the following years. There have been wins and losses--one attorney told me that you haven't really cut your teeth as an attorney until you have lost your first million-dollar case.
Listed below are capsule summaries of some of my more interesting cases.
Listed below are capsule summaries of some of my more interesting cases.In 1998, I wrote an article for Professional Boatbuilder magazine, issue #50, in which I described a few cases that reflected interesting points of law. To see the original manuscript of that article, click here.
Click on the title and it will take you to the text.
The Cheshire Cat:--A strange case of naval architecture, intrigue, and murder!
Stolen Boat Design:--The first case to test the Vessel Hull Design Protection Act--not a very good act at the time, but it is better now.
A Rare Dodge Watercar:--One of the original 1923 prototype Dodge Watercars faces an uncertain future at the hands of unscrupulous restorers.
Stupid vs. Boatbuilder:--No matter how good your defense, you just can win sometimes. He lost his legs, but came out of the case a millionaire.
The Topsy-Turvy Drydock:--Drydocks are supposed to be stable, unless you do the math wrong on free-surface effect.
A few years ago, an attorney called on the phone with an interesting case: Mokai Manufacturing in southeastern New York builds a rotomolded plastic single-seat jet boat, just under 12' long, 3' wide, weighing about 165 lbs. It is powered by a small gasoline engine directly connected by a splined shaft to a specially-designed jet pump. The boat is great for exploring, fishing, bird watching, camping, you name it. Just one trouble—an inventor in Oregon had a patent on jet powered kayaks, and he filed a patent infringement lawsuit against Mokai saying their boat is “kayak-like”, and being jet powered, it contravened his patent. The attorney asked if I could help Mokai with the defense of its design.
The Mokai Sportboat
It turned out that the patent was written specifically for kayaks and boats that were of “kayak style” or were “kayak like”. The patent also had a few diagrams which did indeed show a kayak type of craft, and it described the hull as a displacement hull, or more specifically a double-ended displacement hull. It also included in its definition traditional kayaks, more modern sporting kayaks, and other kayak-like boats, including “sit-on” seagoing kayaks. These types of craft, when fitted with an engine and a waterjet in a watertight compartment, were to be covered by the inventor's patent. The court also issued its own Opinion and Order which defined the term “kayak” to mean “traditional kayaks, more modern sporting kayaks, and kayak-like boats” which for hull shape has “the basic symmetry and traditional decked, double-ended design of a kayak.”
The Mokai's shape makes it a truly unique boat.
So what did that mean? Was the Mokai, in fact, a kayak, and being jet powered, did it infringe on the patent? My first task was to issue a report to point out that the offered definitions of the terms “kayak style”, and “kayak like” were not clear. This was relatively easy: I had only to point out that a large population of other types of craft could fit the inventor's and the court's vague definitions, such as:
A canoe, if decked over (that is, if someone wanted to.)
Therefore, I said, it is proven by many examples that a number of boat types existed which could be decked over and fitted with jet pumps that met the patent's and the court's definition of “kayak style”, or “kayak like”, but clearly were not kayaks. Therefore, one cannot know with any certainty what the boundaries of these definitions or descriptions are. These terms were overly broad and vague and subject to wide interpretation. The Mokai, as can be seen in the photos above, is not double-ended, and it does not have a displacement hull, rather it is a planing hull.
My next task was to write a final report on the features of the Mokai and how it should be regarded with respect to all 18 claims of the patent. The president of Mokai Manufacturing, Rick Murray, very kindly shipped to me a Mokai for testing. This is a really remarkable little craft, and I thoroughly enjoyed myself in the Intracoastal Waterway here in St. Augustine. Unfortunately, I don't have any pictures of my tests, but they would have been pretty much like the photos above. I also had to review a bunch of court documents and reports, plus videotapes provided by both the inventor and Mokai Manufacturing.
Unfortunately for the inventor, the patent was written with a first independent claim, and seventeen dependent claims. That first independent claim covered the definition and descriptions of a kayak, as stated above. In the end, the arguments were more complicated, and I had to address not only “kayak style” and “kayak like”, but also the features of double-ended, displacement hull (as opposed to a planing hull), and watertightness, all of which figured into the dependent claims of the patent.
After many pages of discussion, I finished with the following set of photographs, comparing the Mokai to both a kayak and a hydroplane:
What do you think?
My conclusion: The Mokai is not a kayak—it is not double-ended, and it is not even “kayak like.” The court agreed, and on this point alone Mokai won the case—they had not infringed on the inventor's patent, the first independent claim. The inventor appealed and lost, and so this argument was upheld a second time.
This case succeeded in part, I think, because Mokai's attorney, Timothy Gibson, was really very good, very well versed in patent law and legal argument, and very patient with me in describing the issues of the case. It was a pleasure working with him. Having served in a number of expert witness cases, one greatly appreciates a talented attorney who has mastery of facts regarding boats, and who really knows how to lay out a case in court to the best advantage. I did not appear in court for this case, but I can only guess that Mr. Gibson's performance was especially effective by the results that were achieved.
This has to be the most fascinating case I have ever been in. It is also unsolved, and I await the day I will know the final answer. Before I go any further, I recently told this story on Professional Boatbuilder Magazine's Blog-talk radio on-line radio program. It is available in the ProBoat Radio Archives, if you would like to click and go there.
The Cheshire Cat
Cheshire was a 60' aluminum catamaran designed and built in France. The original builder died before he finished the boat, leaving only an aluminum hull shell with fiberglass deck house. My client found it through discussions with the designer in Paris, and he ultimately bought it and finished it on site in France. The designer sent an employee, a woman naval architect, to the construction site to monitor weights and construction. She ended up in an affair with the Captain, but that's another story. She also was responsible for assigning the waterline which was painted on the hull at top-coating and anti-fouling.
The boat was launched into the Mediterranean, and it promptly sank deeper than the waterline by almost a foot. Why was the boat so heavy? No time to answer that--the owners were in a rush, and they got the boat transported to the US right away. In Ft. Lauderdale, final outfitting was done and the boat was repainted with fresh anti-fouling, raising the waterline accordingly in the process. Insurance was arranged with a European insurance company for $1.5 million in coverage, offshore use.
The owner enjoyed the boat in the Caribbean for about a year and a half, and then, on a voyage from Belize back to Florida, the boat arrived with a stove-in cross-deck structure. Plating was fractured; frames were broken. The owner set about to getting repair quotes which amounted to about $350,000 just to pull the boat apart and put it back together. Determining the extent of the damage, some of which could be hidden, and fixing it would be extra. The owner filed a claim on his insurance policy to cover the repairs. The insurance company denied the claim initially, as they can typically do.
The owner called me to investigate which resulted in a few trips to the boat in Ft. Lauderdale, one of which was attended by one of the most reputable multihull designers in the world representing the insurance company. Together we determined that the boat was indeed too heavy, by about 8 tons!--this on what was supposed to be a 15-ton boat. The designer had said at one point that if the boat was more than 15% overweight, the cross-deck structure would be too close to the waterline and therefore would suffer impact damage more readily. The insurance company decided that the extra weight constituted faulty construction, and therefore they would not cover the claim.
But why was the boat too heavy? The designer's own naval architect established the waterline based on on-site surveys, and all the construction was "by the book". It couldn't be heavy. It turns out that after the original builder died, another man bought the boat and the boat building business from the builder's widow, and soon after, a young man came looking to buy the boat. However, he did not have near enough money, and the new owner told him to leave. But he didn't--he kept pestering to make a low deal.
Eventually, the young man decided on a complicated plan--he took out a life insurance policy on himself. He found a homeless man in the local French town and got him good and drunk. Then he drove the drunk up onto a nearby mountainside in his car, he put the passed-out drunk in the driver's seat, and sent the car careening off the cliff, and it burst into flames at the bottom, burning the drunk to a crisp! The young man then, somehow, claimed and collected on the life insurance policy (must have had an accomplice!??), and then had plastic surgery done on his face to change his appearance. With the balance of the insurance proceeds, he went back to the new builder to buy the boat.
The new boatbuilder was not fooled. He recognized the young man's voice, if not his appearance, and called the police. In the meantime, the life insurance company got suspicious and had the drunk exhumed from his grave. Public dental records proved the drunk's identity, and the young man ended up in prison with a life sentence for murder.
In the course of my investigation, I did a very exhaustive survey and weight estimate of the boat and could identify only two extra tons of weight, placing the added weight within the designer guidelines of +15%. The insurance company still would not budge on denying the claim, so the owner, armed with my study, filed a lawsuit against the insurance company and its broker. Unfortunately, the insurance company was facing some really bad major claims from various disasters around the world, and did not want to be troubled by a rinky-dink case like this. Even though the other multihull designer and I made a strong case for a managed repair, which would likely cost well below the face value of the policy, the insurance company wouldn't hear of it. Ultimately, the insurance company totaled the boat, and then let the owner keep it! They paid out $1.5 million to make the case go away.
But here are the real questions: Why would anyone go to the trouble of committing a murder and changing his appearance by plastic surgery to buy a half-built boat? And why is the boat so heavy, unbeknownst to all those who were supposed to know? Is there something both valuable and heavy on board, and if so, what is it, and why?
It could also be spent uranium (why, on a multihull?), platinum (not that much--6 tons worth--lying around), or lead (why put lead in a multihull, and why kill for it?). It had to be gold. There is lots of gold in private hands, and tens of thousands of pounds get smuggled every year. I figured the original builder had a cache somewhere that he wanted to get out of the country, and putting it in a custom multihull would be the least suspicious way to do that.
I pleaded with the owner to let me go investigate further because there might be about $50-$60 million worth of gold on board. But the owner was tired of the case and did not really believe me. He sold the boat as is, where is, to a broker, who in turn quickly sold it again. I never really learned why the boat was so heavy. And how ironic--just like the Cheshire Cat in Lewis Carroll's Alice's Adventures in Wonderland: that which is there but cannot be seen.
But I know where Cheshire is--maybe, someday, I will find out where the gold is.
The Vessel Hull Design Protection Act (VHDPA) of 1998 was intended to prevent people from "splashing" existing boat hulls and to set criminal penalties if they did. "Splashing" means "to take a mold from" and then to build more boats from that hull under a different identity. This is design thievery--stealing. Many a boat builder has lost business due to some thief building and marketing a splashed design. The very most important part of naval architecture is the shape of the hull. It costs money and time to develop a hull design that works and has market appeal. Splashing a hull circumvents that cost, not to mention that it is plain dishonest. But until 1998, there was no specific recourse for aggrieved boat builders whose hull designs had been stolen by splashing. The VHDPA was intended to give boat builders and designers some design protection.
Just as I was moving to Florida in 2003, I was hired by a major east Florida boat builder to investigate and testify in federal court in the very first case brought to trial under this law. It seems the client had developed a new flats boat design which proved exceedingly popular at the Miami Boat show. They came away with about 60 orders for new boats of this model. With slight revisions to the design, they then registered the design under the VHDPA, and proceeded to fill orders from new tooling.
Before long, a very well-known competing boat company in west Florida bought one of these flats boats, splashed it, and started selling it as its own design. The original hull design was very distinctive--the shape of its bottom incorporated a small stepped tunnel at the stern. Then, a second boatbuilder, also in west Florida, bought one of the splashed boats, splashed it themselves, and started selling the design under its own name. The original builder discovered both cases of the design theft and filed lawsuits against both other boat builders with very complete paper trails documenting its claims.
The one thing the client did not have was measurement proof, and that is where I came in. The client first hired a hull measuring company to measure two hulls, an original hull design of their own, plus one of the stolen designs from the first thief. I was hired to analyze the data and was able to show in federal court that the two hulls were identical. The lines of the stolen boat fit perfectly into the lines of the original. The only difference in the hull designs was a different style line in the hull sides, but this was not of material importance.
The two boat designs, copy vs. original design.
Unfortunately, the client lost the case. It turned out that the thieving boat builder had extensively modified the deck design--cutting the original into smaller pieces and gluing and filling them back together into a much different geometry. According to the judge, that was sufficient to call the boat a brand new design. The way the VHDPA was written, the hull and the deck were considered one and the same. If you changed the deck design but left the hull intact, that was sufficient to create a brand new boat. Our plaintiff boat builder lost the case and even lost it again on appeal.
The end of the story is that in 2008, the VHDPA was modified to separate the definition of "hull" from the definition of "deck." Now, if you alter either one, you are violating the federal hull design protection act and can face stiff fines and penalties.
Horace Dodge, Jr., son of one of the founders of the Dodge car manufacturing company, had a passion for boats and high-speed racing. With early racing success at a young age, he embarked on a plan to mass produce mahogany speedboats using automobile assembly line manufacturing techniques. With Martin Draeger of the Racine Boat Company, Horace developed a 22' prototype hull design, but could not find any Michigan boat builders to build the boat the way he wanted. Horace turned to the Racine Manufacturing Company, a builder of car bodies in Racine, Wisconsin, to build the first 111 boats. One of these early rare boats still exists almost completely intact--hull number 48.
A really original Dodge Watercar, one of the prototypes.
My client found the 1923 Dodge Watercar in northern Massachusetts and desired to learn the trade of restoring classic wooden boats. As part of the deal to purchase the boat, the current owners offered to restore the bottom and transom with the new owner looking on and lending a hand. Unfortunately, the owners knew little about restoring boats and had no clue about the principles of historical preservation. The job was bastardized--parts were broken, torn, and cut from the hull without regard to preservation at best, or patterns for new pieces at the least. This jewel of history lost value with every part that was discarded or modified. A new transom was made but put on incorrectly, resulting in a different design for the transom corner joints and the hull a full one inch narrower than the original.
I was called in to document the errors and write a story about what is important in boat restoration, historic preservation, and the grievous mistakes that had been made on this rare boat. The owner filed suit against his sellers, and all he could hope for was to get some of his money back. With whatever he made in the case, he was going to try to correct the errors that had been made. I never heard the outcome of the case as the new owner had some serious family health issues to deal with, but I hope he succeeded in his quest to restore a small part of marvelous boatbuilding history.
You shouldn't drive a boat while drunk, and in this case, the inebriated passenger fell out of the 24' center console boat in a banking turn in rough water in a busy harbor up in Maine. The driver had "a buzz on" which he admitted in court. The passenger, a few sheets to the wind himself after an afternoon of drinking beer, had just bent down toward the cooler in front of the center console when the boat hit a wave and he was pitched up, literally heels over head, and overboard to starboard. The passenger tried to hang on to the bow rail, but lost his grip, and later his legs, as the boat ran over him. The outboard's propeller cut nasty gashes across his legs and buttocks. One leg had to be amputated above the knee, the other below. The victim filed suit against the Florida boatbuilder for "lack of adequate hand holds" where he had been standing.
I was called in to assess the adequacy of the hand holds. I made a trip up to Maine and met with the attorneys for our side on board the actual boat involved. We took photographs of me standing where the victim had stood, holding onto the handholds that were right next to him on the center console and on the bow and which were in compliance with applicable standards and good boatbuilding practice. This was not a stretch--it was an easy grasp--with both hands! When I testified, we entered my report and photographs into evidence and explained them to the jury. The boatbuilder's insurance company attorney was in the courtroom casing out the jury and trying to read their reactions to the evidence--just like you see in some movies and on TV. He was confident that our defense was solid.
In court, the injured man's attorney was very tall, about 6' 4" I'd guess, and he made sure to draw out as much pity and sympathy from the jury as he could. We had a podium in the courtroom where the attorneys stood, and this was a good mimic for the center console on the boat. So as this tall attorney repeated the circumstances of when the boat hit the wave, he reached his left hand up high over his head as far as he could--probably about 8' up!--and explained how the poor fellow could not find a proper hand hold. Never mind that the poor bloke was actually bending down at the time, looking for yet another beer in the cooler! The image stuck, and the jury found for the injured plaintiff--one of the largest multimillion dollar awards in Maine's history. Another, and probably more important, factor was likely that no one on the jury was going to deny this fellow some kind of compensation, particularly when the boatbuilder was out of state and had sizeable liability insurance. The boatbuilder appealed the decision, but they lost again. Sometimes, you just can't win.
In the Virgin Islands there was a drydock where yachts could be lifted out of the water for service and repair. The drydock was built of steel in Louisiana, and it had a habit of tipping over at just the wrong time causing the yachts thereon to crash down and into one another. One time it was pretty bad, and the owners of the damaged yacht filed suit against the marina and the builders of the drydock. I was hired to investigate. I am always up for a trip to the Virgin Islands.
We did some tests of the drydock, filling the ballast tanks to take it down--with no boats on board--then discharging the tanks to raise it back up. No problem when the drydock is empty. But accidents had happened, so I needed to look at the structural drawings and review the naval architecture calculations.
There is a phenomenon in naval architecture called "free surface effect". Any tank on a vessel that has some liquid in it experiences this. For small tanks, this is a negligible problem, but for a drydock it is of enormous importance. It works like this: Liquid sitting in a tank is not stable; small perturbations in the movement of the vessel will cause the liquid to shift to one side or the other. The weight of the liquid in the tank is of secondary importance, although it does figure into the total weight and center of gravity of the boat. Of primary importance is the moment of inertia of of the liquid's free surface area. The shift of the liquid in the tank causes the vessel to lose stability (metacentric height), and the amount of lost metacentric height is directly proportional to the moment of inertia of the free surface in the tank. A normally proportioned wall-sided tank that is, say, only about one quarter full has the same free surface as, say, a three-quarter full tank. A tank with just a little liquid and a lot of free surface can be very dangerous, particularly on a drydock.
On this drydock, the structure is U-shaped: The tanks in the bottom are separated port and starboard along the centerline but extend up into the side walls. When the tanks are full, the free-surface is very narrow--only the width of the side walls which was about 4' or so. But when the tanks were almost fully drained, the free surface was half the width of the drydock--very dangerous: a little water and a large free surface.
I reviewed the calculations for moment of inertia of free surface which were done by a consulting naval architect to the drydock company. And there I find a significant mathematical error. The calculations were off by a factor of 4, under-estimating the free-surface effect. Indeed, the drydock was unstable in certain loading conditions where large boats in the drydock would give it an overall high center of gravity. As soon as I discovered this, I advised the attorney in the case to settle as quickly as possible--we could not win. And so it was done.
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