To Paddlewise and Mr. Peter Treby, Partner ^V McMahon & Treby Solicitors Since Paddlewisers have likely already read the response to the following post I sent to Peter (but inadvertently not Paddlewise). I thought maybe you should have a chance to read the original that I sent to Peter (rather than the edited version he responded to on Paddlewise (after it had been carefully misinterpreted and then carefully edited by a lawyer in continuing to badger this witness--me). When I wrote this originally I only suspected by his badgering, setting up a straw man to attack, asking essentially the same question over and over again, and skillfully twisting what I had previously written, that Peter could well be a lawyer since he certainly acted like one. Today I tried to check out my suspicions and found this on the web: http://www.liv.asn.au/news/practicenotes/19990603_19990705.html I present it as evidence that my guess he is (or was once) a lawyer was correct. Here is the original (unedited since) version I sent to him: I delayed sending this response for two weeks because I was waiting for a response from Steve to the questions I asked him to learn more details about the " Literally up to his armpits" incident he reported. I haven't heard from Steve at all yet so I don't know anything more about that report and my response to Peter is getting less timely every day I wait to send it. So here goes (Warning, a very long post) Peter wrote: >>>>>Matt says: [actually I'm quoting our manual here] "With the possibility of entrapment in mind, we suggest that anyone intending to paddle in extreme conditions (while using the sliding seat option), both make sure to not put anything behind the seat that could shift around and block it from moving freely backwards and to limit the forward slide range of the seat to a point where a wet exit would still be easy." [Peter responded:] Extreme conditions? Just coming in through surf is normal not extreme. Any sea kayak ought to be designed to be paddled safely, or as safely as the boat can allow, through small to medium surf. If this risk of the seat sliding forward is known, and by your mention of it, you know about it, why doesn't the boat fitted with a sliding seat come with a forward travel limiting arrangement? Why should the unwary purchaser have to retrofit strings and drill holes in the coaming?<<<<<<<<<< Peter, during the Boat Trim discussion and here you seem to have a way of not understanding what I write and them making assumptions that aren't correct about it. Are you perhaps, a lawyer, or do you practice this technique for some other purpose? Surf that most kayakers would choose to come in or out through is not extreme conditions in my mind just like it is apparently not in yours. So where did you come up with me saying surf is what I meant when I said extreme conditions (but not when you said it)? A big dumping shore break or large six foot plus dumping surf is what is extreme conditions in my mind. You seem to have defined 'extreme' for me differently than you do for yourself and then used your imagined version of what extreme is to me as the basis for your argument. To me that sure sounds like a lawyer writing. You first quote what I wrote in our manual to warn our customers and potential customers about an imagined but never experienced possibility (even though history has shown that the chances of this happening are very slim--we hadn't yet ever heard of it occurring, cannot yet even confirm Steve's report, and had never had it happen to us during all the surfing on the Washington coast we did ourselves) and then you ask "why should the unwary purchaser". I ask you, how did the purchaser get back to being "unwary" we certainly haven't been trying to keep him in the dark, we put the warning in bold faced type even though it might not have been necessary to do so at all as we had no examples to go by only our own concern about the possibility. I understand that in Australia a lot of sea kayaking involves coming in and going out through the surf. In the U. S. surf launches and landings are quite rare among sea kayakers. Normal surf that most of the few folks who do surf would even consider paddling in would be extremely unlikely to ever cause the seat to move. It would take spearing the bottom at a shallow angle (before the kayak is rotating into an ender and several other unlikely events) to move the seat. Spearing the bottom in our kayaks is practically impossible to do, even in extreme surf, because they all have a full volume bow with raked or rounded high ends (and surf is one of the reasons that they all have these shapes). It also takes a certain foot and leg position to get the seat to move forward even when you are trying to move it. We have to teach people just what to do to get it to move at all. This is not the foot position that one naturally assumes in the case of a kayak pearling its bow and about to ender (which at first is to stand on the balls of the feet and lean back). This position brakes the seat from sliding because the forward part of the pedal (in front of the slide bolt) is then levered (torqued) hard against its aluminum slide rail. Bowing ones legs and pushing the outside of the foot against just the outside edge of the footpad (and pulling the footpads inward off of the slide track) is what is needed to move the seat. Ones thighs must also be taken off the thigh braces to move the seat. That is just the opposite of what someone doing an ender naturally does. But, even if the seat were to move forward due to some freak occurrence it is very easy to move it back again, whether one is rightside up or upside down. That is why even though it seemed a possibility the seat could move I didn't worry much about it when surfing myself. In the manual, rather than spell out exactly which extreme conditions could potentially make the seat move I wanted to warn those few paddlers who might potentially encounter conditions extreme enough where this might conceivably happen (however unlikely) to consider this worst case scenario and provide them with, what I considered, the easiest and most secure way to eliminate even that extremely rare possibility. Of course, anything we might do to fix the seat may create the potential for some other hazard as yet unrealized. Should I expose the 99% of our customers to those as yet unknown hazards due to changing a system that has not caused anyone problems we knew of before? I know from experience that any change, even one done with the best of intentions, can cause serious problems never imagined by the designer. In all my time playing in 6+ foot surf I've never had the seat move more than the slightest bit either forwards or backwards from the position I started out in. This includes some rear enders spearing hard into the sand when the shore break was too big to bust out through. I had thought that this would slide the seat back and I made the top of the seat-back high enough to hit the coaming so the seat couldn't slide under the coaming and let the coaming strike my back in a smaller area. I also soon made the seat no higher than the top of the coaming so as not to create a sharper area that might dig into ones back as the momentum of the hit (or the force of a big breaker dumping into me) might force me hard into a laying back onto the back deck position. When I did rear ender and hit the sand hard I was surprised that in those cases the seat didn't move either. Instead the seat plate torqued in the rubber seat slide tracks temporarily braking it from moving. You must push back very low down in the seat with your butt while pivoting your upper body a little forward to put the pressure low down near the tracks to get the seat to move back (and not put greater pressure near the top of the seat). You must also take the pressure off the foot pedals and your thighs off the thigh braces--not something that can all happen when your kayak suddenly stops going backwards as its stern jams into the sand. What happens then is your upper body moves towards the point of collision (towards the back in this surfing backwards case) and pushes the most on the top part of the bucket seat backrest. This pressure at the top tries to rotate the seat, but the seat bottom plate can rotate just a bit before it locks up in its rubber slide tracks and won't slide until the pressure is released. Peter further wrote: >>>>>If a bulkhead was fitted behind the seat, a pad eye or two could conveniently be fitted to tie restraining cords up to. If a forward bulkhead was fitted, the seat, or the feet, could be prevented from travelling too far in that direction too. Holes in the coaming may weaken the coaming, or cause leaks. BTW, is there any provision in Mariner boats to limit stowed gear bags travelling around in the boat? Sliding around when doing enders?<<<<< If the kayak is heavily loaded there is not much room for the seat to slide forward at all because you've most likely got gear bags up against your heels at the normal trim position (with or without a bow bulkhead) and may even have the seat packed in tight so the sliding back feature isn't even available for the first few days of a trip (until you eat and drink some of your gear bulk). Since with a gear load you would have no reason to want to slide the seat forward from the trim position there is no serious disadvantage to putting light bulky bags in the front that fill up the kayak all the way back to ones feet. In fact, you may well have the seat further back from the empty trim position to compensate for the weight of the bow gear load. The flat bottom of our sliding seat footpedals prevent any but the smallest gear bags from accidentally floating out past the footpedals, after a wet exit, even if the cockpit is flushed by the surf (they are also made flat in front so they can go further forward in a Mariner II equipped with a bow bulkhead--this means the bow bulkhead can be placed further back for more buoyancy without limiting the seat slide range). If the kayak was ordered without the optional rear bulkhead the seat itself keeps gear bags of any size from floating out of the back if they were to move but most are wedged tightly in place when the kayak is loaded (and are XL size) and they don't easily move. If the load is light the stern float bag can be inflated above the gear to hold it in place as well. A sea sock (which we recommend for surf, exposed coasts and long crossings) would further prevent any gear at all coming out and would also limit the slide range forward (because the sea sock would have to slide between your butt and the seat around the curve of the seat and seat back--in my experience that's not easy even when I'm trying to so). I pull the sock back to my feet and tuck some excess sea sock behind the seat when I'm getting in the kayak to allow the seat to move within the range I want without the fabric having to slide between my butt and the seat to do so. The sea sock also maximizes the buoyancy (how high a swamped kayak floats) beyond any other flotation system I know of. Most bow bulkheads are placed in front of the footbrace track and the paddler with average leg length is likely to find the pedal in the middle of the pedal track range (typically there is about a foot of pedal adjustment range) reducing the bow buoyancy when swamped. Peter's suggestion of adding a front bulkhead could only prevent especially long-legged paddlers from moving too far forward. A large float bag (like we sell to fit our kayaks) could be inflated fully and placed so that it came back to near that particular paddler's foot pedals to limit the possible slide range forward for any leg length person (as could gear bags, but not fixed bulkheads unless they were custom installed for a particular paddler). We do custom install front bulkheads sometimes in the Mariner II but that will tend to limit the potential market for that kayak (when it is resold) to people with shorter legs and/or smaller feet than the original customer. While there are several possible ways the seat slide range could be limited for those few paddlers who could conceivably ever need it, I believe the method I suggested in our manual is the best one. There is a very short distance from the coaming hanger to the back seat supports and I believe this provides the strongest anchor for the seat, whether the kayak has a rear bulkhead or not. For 99% of North American kayakers setting up this slide range stopper up in advance would just confuse them more than our unique sliding seat unit already can (and we wouldn't know what other risks might be being created for a possibly far greater percentage of our customers with any temporary method of limiting the slide range). We will happily set up a sliding seat limiter (as described in the manual or one of the customer's choice if it seems reasonable to us) for anyone who requests it (at no extra charge). By stating the never experienced and unlikely (but mentally conceivable) potential problems up front in our manuals (that we send to any new customer before they have to decide on the seat option they want--and that anyone interested in our kayaks can also read for free on the web when shopping for a kayak) anyone who fears that possibility might ever be a problem for them can either buy someone else's kayaks or any of our models with one of the several other--less expensive and lighter weight--fixed seat options). I'm kind of a safety nut, but I have never fixed the sliding seat for use in surf (except since I started using a sea sock in surf--which fixes the seat by its nature--for other reasons*) even though I thought, during the design stage, that the seat might slide too easily and was thinking of ways that it could be fixed into whatever position we chose between moves--but could still be easily adjusted while in the kayak--in the earliest design drawings when trying to imagine how an easily adjustable trim changing seat could be created. [*Note I began to use a sea sock in surf not to fix the seat from sliding, but so I could stay out longer before having to come in and empty out the kayak again and to make the kayak lighter and less likely to be damaged--or damage me or someone else--if it was to come back to shore full of water without me and possible wrap around a boulder or spear the bottom in a shorebreak and fold due to the extra water weight]. I also have always beveled the front of the seat track guides into a shallow ramp so that the seat couldn't get stuck in front of them and be held there (if it somehow were to get that far forward with someone still in the cockpit). I've never heard of anyone needing this but I do it every time anyway as I can't imagine any potential downside except the extra few minutes it takes me to grind them into that shape. Back in the early days of our business we went to the original organizational meetings of the Trade Association of Sea Kayaking (TASK) (now Trade Association of Paddle Sports--TAPS). Liability issues were discussed with a lawyer at some of those meetings. The lawyers told us (manufacturers, retailers, renters, and guides) that anything we said and (especially) wrote in the way of guidance for the customer might well be used against us in court and advised us against saying or writing anything in the way of safety information or "safe" locations to paddle (or even limiting where the renter could take the rented kayak at all due to safety reasons--because then it could be construed that the renter had approved all other locations as being perfectly safe). Ludicrous, yes, but that was the reality of the legal system at least in the US. Cam and I had to make a choice. Do we try to protect ourselves from liability lawsuits and leave our customers to fend for themselves (often in ignorance of the hazards and therefore more likely to die) as the lawyers suggested or do we give them the best guidance we can and take the risk of lawyers later attacking both what we said and what we didn't say. Once having given any safety advice at all we apparently become liable for anything we fail to say in regards to safety hazards as well. We chose to educate our customers and risk letting the lawyer types (and our sharp competitors) twist those statements to their own purposes rather than choosing to cover our own asses. So far, I'm glad we made that choice. I could put the shoe on the other foot: Peter, you paddle a kayak with pointed ends in the surf. You therefore risk spearing an innocent victim with your dagger like bow. You should be aware that this is a possibility and therefore at least pad your pointed bow and stern with some large blunt soft item. In fact, I think Australia, having such an abundance of surf, should pass a law that each end of any kayak made from now on should have a large clown nose ball-shaped bow and stern so if that kayak is used in the surf then it would be less of a danger to the paddler, swimmers, surfacing skin divers, and near surface wildlife in the area. All kayaks without round blunt ends should need to be retrofitted or retired within the next two years. Since any kayak could potentially be used in the surf maybe all kayaks worldwide should have this blunt bow and stern shape and all kayakers should also be required to buy a helmet to go with any kayak they buy kayak just in case that kayak might at some time be used in the surf. Also, maybe all kayaks should have lightning rods (and spontoons) installed by the manufacturer (and made illegal to remove) to protect the occupants from hazards that could arise when paddling at any time. Maybe a large sturdy cross-bar also needs to be placed across the Aussie kayaks, one that extends well out beyond its sides in the seat area so that a salt-water croc or great white shark would be prevented from chomping down directly on the paddler's part of the kayak. According to someone on this list, Steve has developed or provides a skeg clearing tool made from a butter knife (if I'm recalling correctly). Therefore, isn't that good evidence he is well aware that skegs on his kayaks can jam. How can he sell a kayak, in good conscience, where the skeg might jam (or with someone else we could use--the rudder might break) and make that kayak more difficult to control as a result. Kayaks should not be sold with such unreliable devices like a rudder that can also slash or bash a paddler in the surf (unless maybe covered by a clown nose too). A rudder, often complete with thin exposed cables, that can easily cut his hand to the bone if slid across it (actually happened at least once in BC and required evacuation) if he tries to grab the kayak and catches only the rudder cable. Maybe all kayakers with rudders should be required to always wear gloves to minimize this risk. Then again, maybe, no gloves should be allowed to be sold to anyone at all because some of them might fall into the hands of kayakers. The gloved kayaker then might not be able to find the release loop on their spray deck because of their lack of feeling through those same gloves (reported to me personally at least a half a dozen times--and because of that, eventually resulted in Doug Lloyd's entrapment article in Sea Kayaker a little while back). [Note: I was too busy to write the article although at first I intended to. I bugged the editor of Sea Kayaker to get someone else to write the article ASAP, rather than wait until I had time, because I felt paddlers needed to be warned quickly before this problem resulted in a tragedy. I was willing to supply any author with copies of my notes and names and phone numbers of "victims" to interview. Paddlewise's, Doug Lloyd was the third person to take on trying to write that article for Sea Kayaker. I thought he did an excellent job of it. Peter, you weren't looking at one of our kayaks when you criticized the addition of holes through the seat hangers of the coaming, so you couldn't readily see where the cord can be passed through the coaming without there being a hole through the kayak to the outside (on the hangers where a fixed seat option can be hung by bolts through holes drilled in the same area). No holes need to go through to the outside of the kayak as you imply. I don't think a bulkhead would be the best attachment point for a seat slide limiter because the bulkhead would likely have to be made overly beefy (possibly making the hull rather than the bulkhead the place where damage would most likely occur--a much more serious failure--if a collision with a rock near it or sliding over a rock concentrated stress in the bulkhead area). We have an eyelet inside most of our kayaks (those that don't have a rear bulkhead) that a cord could be tied to to limit forward seat travel or help contain any gear that might be in danger of shifting. I've never needed to use it for holding in gear though. The case of a seat sliding forward that Steve described, if confirmed, is the first case I can recall ever even hearing about this having happened, in 24 years of making sliding seat kayaks. If any paddler had it happen and thought it was a significant problem I suspect I would have heard about it from them directly. We encourage both positive and negative feedback and customers certainly haven't been shy about sharing other problems with us concerning items we or others have sold them. I hope to be able to contact any paddler who has had any frightening experience with one of our kayaks to get more details about what exactly happened so we can best solve the actual problem. I would like to minimize the risk to our customers caused by or aggravated by something about our kayaks. However, I don't want to create a greater risk for every new owner by attempting to fix what is possibly only an imagined risk for a very small percentage of owners. About two weeks ago, I asked Steve to let me know who the kayaker was he wrote had the problem he described. I asked several other questions that might help me figure out who that (I assume) Oregon kayaker might have been (if Steve couldn't remember or didn't know the kayaker's name). I also asked how this paddler recovered or was rescued from the situation he described. So far I haven't heard a word back from Steve about this. Several possibilities present themselves as to why. They range from Steve having gone on vacation and hasn't yet seen my request to Steve's post being a made-up scenario that seemed possible (we mentioned it in our own literature after all) but never actually happened. The "literally up to his armpits" part did arouse my suspicions that the report might not be entirely true (or was perhaps remembered incorrectly) because that is just not what would happen if the seat were to slide well forward (because the foot pedals are attached to the seat and move with it--so the paddler would remain in the upright seated position as they slid forward). I'd prefer to hear about this from the person it happened to rather than from a public pronouncement on this list made by a direct competitor with a potential axe to grind (since we compete in both retail and design aspects of this business). Recall that this topic started out as a skeg jamming discussion (and that it was not brought up on Paddlewise by me). This may just be a "red herring" but if it did actually happen I'd sure like to hear more about it from the guy who actually experienced it. Why am I being so skeptical? Well, from long experience. We were one of, if not the, first sea kayak companies in the U.S. to put hard chines on fiberglass sea kayaks (about 24 years ago). Many times back then we heard from potential customers that they had been told by competitors that hard chines get grabbed by waves and currents, and will be grabbed by the water and suddenly flip you upside down. We knew these stories were not coming from people who had ever paddled with hard chines because we knew from experience in the roughest of conditions that it simply wasn't true. We had lots of experience in those conditions, including big surf, with hard chine kayaks and had less problems with them than with round bilged kayaks. The criticism was strictly in the imaginations of someone looking for a way to dismiss a competitor's kayaks based on a unique feature of those kayaks that the kayaks they sold didn't have. Now that there are a lot of hard chined sea kayaks on the market, we don't hear that "red herring" much any more. We also heard from those influenced by the promoters of British kayaks (and the promoters themselves in newsletters in some cases) that our longer cockpits (than the 19"x15" or so sized kayak cockpits they promoted) would allow paddlers to be forcibly ejected from the cockpit in rough seas. We don't hear that one any more either as now most British kayaks sold in this country have cockpits much closer to the size we had back then than to their "Ocean" sized cockpits. I still hear from people that have been told by a salesman that you absolutely need a rudder because of "winds and currents". I can understand why someone with limited experience with a variety of kayaks would say that about winds but I still haven't had anyone adequately explain to me what currents do to a kayak that might be made easier to deal with if one had a rudder. The hardest thing I find about currents is knowing if you are in one and which way and how fast is it pushing you. To me a GPS would seem to be a far bigger help than a rudder when faced with "currents". Our "Paddling" manual goes into many possible risks, both real and imagined. All things we want our customers to consider when using our kayak designs. What other kayak company spells out possible risks involved with kayaking like this? Lawyer types and sharp competitors may well attempt to use our concern about our customers (and sea kayakers in general) against us. That is a risk we take by making our concerns freely available to everyone. We will continue to do so. Matt Broze www.marinerkayaks.com *************************************************************************** PaddleWise Paddling Mailing List - Any opinions or suggestions expressed here are solely those of the writer(s). You must assume the entire responsibility for reliance upon them. All postings copyright the author. Submissions: PaddleWise_at_PaddleWise.net Subscriptions: PaddleWise-request_at_PaddleWise.net Website: http://www.paddlewise.net/ ***************************************************************************
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