"The Legislature currently has a proposal before it to require public vessels to carry marine protection and indemnity insurance," Lippman wrote about A6699. "We note that such a requirementhad it existedmight have been able to provide a modicum of relief here."
The Ethan Allen was loaded with elderly passengers, mostly from Michigan and Ohio, when it tipped over while on a trip to view fall foliage along Lake George.
Authorities said they suspected that the boat might have foundered in the wake of a passing vessel on what was otherwise a clear day on a placid lake.
Testimony by state inspectors indicated that they had routinely listed the capacity of the Ethan Allen at 48 passengers as set by the U.S. Coast Guard in the 1960s. The state took over inspections of the craft in 1979.
The canvas canopy on the 40-foot boat was replaced by a wooden one in 1989, and the plaintiffs contended that the heavier canopy made the Ethan Allen unstable or the 48-passenger limit was outated because it was based on the average weight of 140 pounds accepted in the 1960s.
The state has since increased the average weight per passenger to 174 pounds.
The court's ruling reversed the finding of a Appellate Division, Third Department panel, which granted the claimants' motion to dismiss the state's defense of sovereign immunity in Metz v. State of New York, 86 AD3d 748 (2011).
That court held that while the inspections were a government function, the state had failed to show it exercised any discretion in how it carried out inspections because they routinely continued to set its passenger limit at 48, even after the wooden canopy was added (NYLJ, July 15, 2011).