§ 48 — Negligence in use or operation of vessel attributable to owner

New York § 48

• Jurisdiction: New York
• Law NAV: Navigation
• Part 1: Vessels, General
• Art. 4: No title

Text

§ 48. Negligence in use or operation of vessel attributable to owner.\n1. Every owner of a vessel used or operated upon the navigable waters of\nthe state or any tidewaters bordering on or lying within the boundaries\nof Nassau and Suffolk counties, shall be liable and responsible for\ndeath or injuries to person or property resulting from negligence in the\nuse or operation of such vessel, in the business of such owner, or\notherwise, by any person using or operating the same with the\npermission, express or implied, of such owner.\n The use or operation by a non-resident or non-residents of a vessel in\nthis state, or the use or operation in this state of a vessel in the\nbusiness of a non-resident, or the use or operation in this state of a\nvessel owned by a non-resident if so used or operated with his\npermission, express or implied, shall be deemed equivalent to an\nappointment by such non-resident of the secretary of state to be his\ntrue and lawful attorney upon whom may be served the summons in any\naction against him, growing out of any accident or collision in which\nsuch non-resident may be involved while using or operating such vessel\nin this state or in which such vessel may be involved while being used\nor operated in this state in the business of such non-resident or with\nthe permission, express or implied, of such non-resident owner; and such\nuse or operation shall be a signification of his agreement that any such\nsummons against him which is so served shall be of the same legal force\nand validity as if served on him personally within the state and within\nthe territorial jurisdiction of the court from which the summons issues,\nand that such appointment of the secretary of state shall be irrevocable\nand binding upon his executor or administrator. Where such non-resident\nhas died prior to the commencement of an action brought pursuant to this\nsection, service of process shall be made on the executor or\nadministrator of such non-resident in the same manner and on the same\nnotice as is provided in the case of the non-resident himself. Where an\naction has been duly commenced under the provisions of this section\nagainst a non-resident who dies thereafter, the court must allow the\naction to be continued against his executor or administrator upon motion\nwith such notice as the court may deem proper.\n 2. A summons in an action described in this section may issue in any\ncourt in the state having jurisdiction of the subject matter and be\nserved as hereinafter provided. Service of such summons shall be made by\nmailing a copy thereof to the secretary of state at his office in the\ncity of Albany, or by personally delivering a copy thereof to one of his\nregularly established offices, with a fee of ten dollars, and such\nservice shall be sufficient service upon such non-resident provided that\nnotice of such service and a copy of the summons and complaint are\nforthwith sent by or on behalf of the plaintiff to the defendant by\nregistered mail with return receipt requested. The plaintiff shall file\nwith the clerk of the court in which the action is pending, or with the\njudge or justice of such court in case there be no clerk, an affidavit\nof compliance herewith, a copy of the summons and complaint, and either\na return receipt purporting to be signed by the defendant or a person\nqualified to receive his registered mail, in accordance with the rules\nan customs of the post-office department; or, if acceptance was refused\nby the defendant or his agent, the original envelope bearing a notation\nby the postal authorities that receipt was refused, and an affidavit by\nor on behalf of the plaintiff that notice of such mailing and refusal\nwas forthwith sent to the defendant by ordinary mail. Where the summons\nis mailed to a foreign country, other official proof of the delivery of\nthe mail may be filed in case the post-office department is unable to\nobtain such a return receipt. The foregoing papers shall be filed within\nthirty days after the return receipt or other official proof of delivery\nor the original envelope bearing a notation of refusal, as the case may\nbe, is received by the plaintiff. Service of process shall be complete\nten days after such papers are filed. The return receipt or other\nofficial proof of delivery shall constitute presumptive evidence that\nthe summons mailed was received by the defendant or a person qualified\nto receive his registered mail; and the notation or refusal shall\nconstitute presumptive evidence that the refusal was by the defendant or\nhis agent. Service of such summons also may be made by mailing a copy\nthereof to the secretary of state at this office in the city of Albany,\nor by personally delivering a copy thereof to one of his regularly\nestablished offices, with a fee of ten dollars, and by delivering a\nduplicate copy thereof, with the complaint annexed thereto, to the\ndefendant personally without the state by a resident or citizen of the\nstate of New York or a sheriff, under-sheriff, deputy-sheriff or\nconstable of the county or other political subdivision in which the\npersonal service is made, or an officer authorized by the laws of this\nstate, to take acknowledgements of deeds to be recorded in this state,\nor an attorney and/or counselor at law, solicitor, advocate or barrister\nduly qualified to practice in the state or country where such service is\nmade, or by a United States marshal or deputy United States marshal.\nProof of personal service without the state shall be filed with the\nclerk of the court in which the action is pending within thirty days\nafter such service. Personal service without the state is complete ten\ndays after proof thereof is filed. The court in which the action is\npending may order such extensions as may be necessary to afford the\ndefendant reasonable opportunity to defend the action.\n Nothing herein shall be construed as affecting other methods of\nservice of process against non-residents as provided by law.\n 3. As used in this section "vessel" means a vessel as defined in\nsection two, subdivision six of this chapter, except a vessel having a\nvalid marine document issued by the United States or a foreign\ngovernment.\n 4. As used in this section, "owner" means any person other than a lien\nholder having the property in or title to a vessel, and also any lessee\nor bailee having the exclusive use thereof, under a lease or otherwise,\nfor a period greater than thirty days, and their liability under this\nsection, shall be joint and several. If a vessel be sold under a\ncontract of conditional sale whereby the title to such vessel remains in\nthe vendor, such vendor or his assignee shall not, after delivery of\nsuch vessel, be deemed an owner within the provisions of this section,\nbut the vendee or his assignee, receiving possession thereof, shall be\ndeemed such owner notwithstanding the terms of such contract, until the\nvendor or his assignee shall retake possession of such vessel. A\nchattel mortgagee, conditional vendor, or an entruster as defined by\nsection fifty-one of the personal property law, of any vessel out of\npossession, shall not be deemed an owner within the provisions of this\nsection.\n 5. All bonds executed by or policies of insurance issued to the owner\nof any vessel subject to the provisions of this section shall contain a\nprovision for indemnity or security against the liability and\nresponsibility provided in this section; but this provision shall not be\nconstrued as requiring that such a policy include insurance against any\nliability of the insured, being an individual, for death of or injuries\nto his or her spouse or injury to property of either.\n 6. This section shall not be construed to affect any of the rights of\nan owner under the laws of the United States.\n