Vol. 73, No. 6, June 2000

Wisconsin's Boating Rules
of the Road

Despite the limited number of Wisconsin Boating Rules of the Road, one can thoroughly analyze a boating accident by using the federal rules and their expansive court interpretations. Read how to chart such a course.

by Carlyle H. Whipple

n elderly couple is fishing on Lake Mendota in the early afternoon of Labor Day. Their 16-foot boat is propelled by a 25-horsepower outboard motor. While traveling close to shore, the boat collides with an unused dock causing the wife to be thrown overboard. The husband operator, while trying to rescue his wife, falls overboard and drowns. The boat continues to operate crewless with the propeller causing injury to the swimming wife. No one was wearing a life jacket.

The scenario above is not an unusual recreational boating accident. In such a situation, attorneys involved in the case must determine what are the significant facts, and the relative fault of the boat operator, passenger, and dock owner using Wisconsin boating law. In order to conduct a fruitful inquiry into and meaningful evaluation of an accident, attorneys must understand the complexity and relationship of state and federal boating laws. This article explores one facet of these laws - The Rules of the Road.¹

With its 540,835 registered recreational boats, Wisconsin ranks sixth nationally in the number of registered boats. Consequently, the state and federal boating laws affect many of the state's residents.

The most current records available show that in 1997 Wisconsin had 210 reported boating accidents involving 276 boats, 29 fatalities, 148 injuries, and $1,246,929 in property damage. The most common types of accidents were collisions with another boat (31%), falls overboard (15%), water-ski mishaps (12%), struck submerged object (9%), and collision with a fixed object (8.5%).²

A reportable boating accident is defined as a collision, accident, or other incident involving a boat that results in death or injury to a person requiring medical treatment, disability for more than 24 hours, loss of consciousness, or a total property damage in excess of $500.³ The United States Coast Guard estimates that only 10 to 15 percent of the nonfatal, reportable accidents are in fact reported.⁴ Conservatively, about 2,000 unreported nonfatal accidents occurred in 1997 that were reportable due to personal injuries and/or property damage.

Classification of Wisconsin's Waters

The boating waters of Wisconsin fall into two categories: 1) joint federal-state waters; and 2) sole-state waters.⁵ The federal inland waters include lakes Michigan and Superior and their tributaries; the Mississippi, Wisconsin, Milwaukee, and Fox rivers⁶; Pike Creek in the City of Kenosha⁷; and lakes Winnebago and Buttes des Morts. All other waters in Wisconsin are sole-state waters and subject only to the laws and procedures of the state.⁸

Vessels to Which the Rules Apply

The federal and state definitions of the term "boat" or "vessel" include every description of watercraft used or capable of being used as a means of transportation on water. The sole definitional difference is that Wisconsin excludes seaplanes and fishing rafts while Federal Rule 3(a) does not.⁹

Rules of the Road for Sole-state Waters

The accident in the introductory scenario occurred on Lake Mendota, which is classified as a sole-state water. Attorneys analyzing the accident will find the applicable boating rules of the road in Chapter 30, Subchapter V of the Wisconsin Statutes¹⁰; with "Traffic Rules" in section 30.65. These rules are solely concerned with multiple boat head-to-head approaches, oblique or right angle meetings, overtaking, and the duty of the boat having the right of way to maintain its course and speed.¹¹

There also exists the generic obligations to operate at a reasonable speed¹² and in a nonnegligent manner.¹³ The required safety equipment is limited to running lights, engine cutoff switch, carrying of life jackets, fire extinguisher, backfire flame arresters, ventilators, and battery tie-downs and cover.¹⁴ There also is a set of rules pertaining to docks and piers,¹⁵ waterskiing,¹⁶ and scuba diving operations, operating while intoxicated, creating a hazardous wake, boating near swimmers, operating in restricted areas, anchoring and mooring, overloading, and overpowering.¹⁷ Local Wisconsin units of government may enact ordinances as long as they are "in strict conformity" with and "not contrary to or inconsistent with" the state boating Rules of the Road.¹⁸

One difficulty in analyzing a boating accident is that, while there are several boating accident cases, none of the cases reported in the Wisconsin Statutes Annotated shed any light on the meaning of Wisconsin Maritime Rules of the Road or how they are to be applied to a given situation. In addition, to try to analogize their application from the automobile rules of the road is improper for two reasons. First, the auto rules are applied to fixed roadways and intersections - there generally are no fixed or restricted roadways on the water. Boating operations can occur anywhere in the two-dimensional plane on the surface of a lake or river. Second, the legislative history fails to support any landbound analogy.¹⁹

Legislative History of Chapter 30

The present Wisconsin Boating Rules of the Road originally were enacted as Chapter 505 of the Laws of 1959. According to the drafting note, the "traffic rules" were based upon the federal pilot rules then applicable to the Great Lakes and the Mississippi River, although the Wisconsin rules were "not as complete as such federal rules" nor have they become any more expansive.

From its inception in 1959, the Wisconsin boating traffic rules have given the Wisconsin Department of Natural Resources (DNR) the authority to adopt "such additional traffic rules as it deems necessary in the interest of public safety. Such rules shall conform as nearly as possible to the federal pilot rules."²⁰ The DNR has not promulgated any administrative rules under this grant of rule-making authority.

There were four separate and distinct sets of federal pilot rules in 1959. Each of these sets of rules had the express purpose of preventing collisions on certain specified waters of the United States or the high seas. In 1959 the federal rules consisted of the International, Inland, Western Rivers, and the Great Lakes Rules.²¹ The latter two rules were applicable to Wisconsin's dual federal-state jurisdictional waters. All of these sets of rules - with the exception of the International Rules²² - were amalgamated into the present Inland Navigation Rules that became effective on Dec. 24, 1981, except for the Great Lakes where they became effective on March 1, 1983.²³

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