Re: [Paddlewise] Licensing

Steve Cramer wrote (in response to my suggestion that rental outfitters
might be qualified to test and issue licenses for the types of boats they
rent):

>If you certify me as
> competent, take my $$ and rent me a boat, and I drown, who's responsible
> for my death? For the benefit of our international correspondents, I'll
> answer the question: you are, unless your lawyer is better than mine.

Not necessarily.  In fact, I'd say not as a general rule.  And certainly not
if the legislation that created the licensing framework said not.  This is
not a new kind of concept to the law, and protection from liability is built
into all kinds of legislative initiatives.

I would not suggest that every corner store that rents a couple of canoes or
kayaks be empowered to test and issue licenses.  There should be a
governmental agency responsible for doing so (same people perhaps who issue
fishing or hunting licenses, or perhaps the DMV).  But I do think that
larger or more sophisticated rental outfitters might be qualified to do so,
as well, if for no other reason than to ensure that in areas where there is
a significant demand for rental boats potential renters are not deprived of
the right to operate them simply because there is no convenient (open) govt
agency available to issue the license.  The statutory framework should
perhaps provide that no private licensing entity can be held liable to a
party to whom they issue a license.  A licensing entity that improperly
issues licenses (ie, selss them for a fee without testing, or routinely
doesn't bother to administer the test) could be prosecuted by the
government.  This kind of "immunity" is not at all uncommon in the law.  Not
at all.  Even without licensing there are substantial immunities from
liability in the sports world -- for example, most ski states have
immunities (of varying degrees) for ski resort operators.  And there have
long been (in effect) immunities for operators of sports arenas and the
like.  The simplistic suggestion that a private licensing authority will be
held liable if a person they license (after administering a legislatively
adopted test) is injured or killed in the sport is . . . well, simplistic,
and almost certainly wrong.  (No slight meant to Steve -- it was and is
certainly a point worth raising, IMO.  But the answer just isn't so simple,
that's all.)

Ralph Diaz raised some very interesting questions, mostly regarding the
difficulty of applying standards to a sport necessarily (and thankfully)
rich with diversities.  I guess my general response to that is that I think
the licensing program could be general enough to account for the various
differences of style and technique.  For example, perhaps there could be a
general requirement that in order to be granted a license to operate a sea
kayak the operator must demonstrate an ability to exit the boat and
re-enter.  The statute could easily say: "The licensing authority may not
mandate any particular method of re-entry, but must require that the
operator demonstrate the ability to regain entry of and control of the boat
by some method."  I admit, it's a little fuzzy.  But perhaps it should be.
We're not talking about licensing nuclear physicists here.  Just boat
operators, and just (mainly) for their own protection.  It needn't be so
complicated.

So, just a few more thoughts. . .

Mark

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