ARTICLE 1 Short Title and Definitions
Short title. This chapter shall be known as the navigation law,
and shall apply to navigation and the use of navigable waters of the
state and regulations hereby created.
Definitions. The following terms when used in this chapter unless
otherwise expressly stated, or unless the context of the language or
subject matter indicates a different meaning or application was
intended, shall be deemed to mean and include: 1. "Office" shall mean
the state office of parks, recreation and historic preservation.
2. "Commissioner" shall mean the commissioner of parks, recreation and
historic preservation, unless otherwise indicated, except that for
purposes of the administration of articles three and eleven of this
chapter within the sixth park region, the boundaries of which are
described in subdivision six of section 7.01 of the parks, recreation
and historic preservation law, "commissioner" shall mean the
commissioner of environmental conservation.
4. "Navigable waters of the state" shall mean all lakes, rivers,
streams and waters within the boundaries of the state and not privately
owned, which are navigable in fact or upon which vessels are operated,
except all tidewaters bordering on and lying within the boundaries of
Nassau and Suffolk counties.
5. "Navigable in fact" shall mean navigable in its natural or
unimproved condition, affording a channel for useful commerce of a
substantial and permanent character conducted in the customary mode of
trade and travel on water. A theoretical or potential navigability, or
one that is temporary, precarious and unprofitable is not sufficient,
but to be navigable in fact a lake or stream must have practical
usefulness to the public as a highway for transportation.
6. "Vessel" shall mean any floating craft and all vessels shall belong
to one of the following classes:
(a) "Public Vessel" shall mean and include every vessel which is
propelled in whole or in part by mechanical power and is used or
operated for commercial purposes on the navigable waters of the state;
that is either carrying passengers, carrying freight, towing, or for any
other use; for which a compensation is received, either directly or
where provided as an accommodation, advantage, facility or privilege at
any place of public accommodation, resort or amusement.
(b) "Residential vessel" shall mean and include every vessel which is
used primarily as a residence.
(c) "Pleasure vessel" shall mean and include every vessel not within
the classification of public vessel or residential vessel. However, the
provisions of this chapter shall not apply to rowboats, canoes and
kayaks except as otherwise expressly provided.
(d) The term "vessel" as used in this chapter shall not include a crew
racing shell. "Crew racing shell" shall mean any shell, gig, barge or
other boat designed primarily for practice or racing, propelled by oars
or sweeps, in the sport of crew or scull racing conducted by a private
or public educational institution, school, academy, college, university
or association of any of the preceding, or by an amateur sports club or
association or by the United States or International Olympics Committee
and shall not include canoes, rowboats or lifeboats.
The boat or launch accompanying a crew racing shell shall have
sufficient safety devices to aid members of the crew should the need
arise.
7. "Owner" shall mean the person actually holding title to a vessel,
except a public vessel chartered unmanned for a period of more than
thirty consecutive days, in which case "owner" shall include the person
chartering the vessel.
8. "Person" shall mean an individual, partnership, corporation or
association.
9. "Master" shall include every individual having for the time the
charge, control or direction of a vessel.
10. "Pilot" shall mean an individual licensed to take charge of the
course of a vessel through or upon specific waters.
11. "Engineer" shall mean an individual licensed to operate a vessel's
main engines and auxiliaries.
12. "Joint pilot and engineer" shall mean an individual licensed to
act as both pilot and engineer for a public vessel which in the judgment
of the inspector can be safely navigated by one individual.
13. "Operator" shall mean an individual who operates or navigates a
pleasure vessel.
14. "License" shall mean a certificate furnished by the inspector.
15. "Inspector" shall mean the individual, or individuals, provided
for in article two, section twelve, of this chapter.
16. "Under way" shall mean that the vessel is not at anchor, or made
fast to the shore, or aground.
17. "Visibility" as applied to lights shall mean discernibility on a
dark night with a clear atmosphere.
18. "Starboard" shall mean the right hand side, facing the bow of the
vessel.
19. "Port" shall mean the left hand side, facing the bow of the
vessel.
20. "Wharf" shall mean and include any structure built or maintained
for the purpose of providing a berthing place for vessels.
21. "Dock" shall mean a wharf, or portion of a wharf, extending along
the shore line and generally connected with the uplands throughout its
length.
22. "Pier" shall mean a wharf or portion of a wharf extending from the
shore line with water on both sides.
23. "Jetty" shall mean a structure located within the shore lines of a
body of water for the purpose of controlling currents usually to prevent
filling in a channel.
24. "Breakwater" shall mean a structure located within the shore line
of a body of water for the purpose of providing protection from wind and
wave action.
25. "Undocumented vessel" shall mean any vessel which is not required
to have, and does not have, a valid marine document issued by the
federal bureau of customs.
26. "Open construction" shall mean that a vessel is so constructed as
to be void of any decking or enclosure which inhibits the continuous and
free circulation of air within the vessel when under way.
27. "Aids to Navigation" shall mean buoys, beacons or other fixed
objects in the water which are used to mark obstructions to navigation
or to direct navigation through safe channels.
28. "Floating Objects" shall mean any anchored marker or platform
floating on the surface of the water other than aids to navigation and
shall include but not be limited to, bathing beach markers, speed zone
markers, information markers, swimming or diving floats, mooring buoys,
fishing buoys, and ski jumps.
29. "Gray water" shall mean waste water generated by water using
fixtures other than toilets; including but not limited to baths, sinks
and laundry facilities used on residential vessels.
30. "Personal watercraft" shall mean a vessel which uses an inboard
motor powering a water jet pump as its primary source of motive power
and which is designed to be operated by a person sitting, standing, or
kneeling on, or being towed behind the vessel rather than in the
conventional manner of sitting or standing inside the vessel.
30-a. "Personal flotation device" shall mean a wearable flotation
device, classified and approved by the United States Coast Guard which
is in such a condition that it is fit for its intended purpose, bears a
legibly marked United States Coast Guard approval number and is of an
appropriate size for the person who intends to use it.
31. "Specialty prop-craft" shall mean a vessel which is powered by an
outboard motor or a propeller driven motor and which is designed to be
operated by a person sitting, standing or kneeling on or being towed
behind the vessel rather than in the conventional manner of sitting or
standing inside the vessel.
32. "Effective muffler" or "underwater exhaust system" shall mean a
sound suppression device or system designed and installed to abate the
sound of exhaust gases emitted from an internal combustion engine and
which prevents excessive or unusual noise, as set forth in section
forty-four of this chapter.
33. "Abandoned historic shipwreck" shall mean wrecks situated on or
under lands owned by the state, in which the state holds title pursuant
to the Abandoned Shipwrecks Act of 1987 (43 U.S.C. 2101) or which, by
reason of their antiquity, history, architecture, archaeology or
cultural value, have state or national importance and are eligible for
inclusion on the state register of historic places, and which have been
abandoned by the owner of record. The term shall include the wreck, its
cargo and contents and the situs.
34. "Wreck" shall mean any wrecked property, other than an abandoned
historic shipwreck.
ARTICLE 2 Administration
Duties of the commissioner of parks, recreation and historic
preservation and the commissioner of environmental conservation. The
commissioner of parks, recreation and historic preservation shall
administer the provisions of this chapter, except as such administration
may be otherwise provided. He or she may delegate such administration
to another officer or employee of the office of parks, recreation and
historic preservation. Within the sixth park region, the boundaries of
which are described in subdivision six of section 7.01 of the parks,
recreation and historic preservation law, the commissioner of
environmental conservation shall administer the provisions of articles
three and eleven of this chapter. He or she may delegate such
administration to another officer or employee of the department of
environmental conservation.
Inspector; qualifications. The commissioner may appoint an
inspector or inspectors, who shall have a practical knowledge of the
construction, equipment and management of vessels and who shall possess
such experience and qualifications as required to carry out and fulfill
the duties of inspector indicated in this chapter and specifically
defined in section thirteen hereof and as may be determined by the New
York state civil service department.
Inspector; duties. The inspector shall annually, and at such
other times as they shall deem it expedient, or as the commissioner may
direct, inspect every public vessel, except vessels which navigate on
waters over which the United States exercises active control. The
inspector shall also annually, and at such other times the inspector
deems expedient or as the commissioner may direct, inspect any vessel
operated on privately or publicly owned underground non-navigable
waterways with no navigable inlet or outlet that carry passengers for
compensation, either received directly or where provided as an
accommodation, advantage, facility or privilege at any place of public
accommodation, resort or amusement. The inspector shall carefully
examine the hull, the propelling and auxiliary machinery, the electrical
apparatus and the vessel's equipment. They shall require such changes,
repairs and improvements to be made as deemed expedient for the
contemplated route. No vessel, or propelling machinery thereof shall be
allowed to be used if constructed in whole, or in part, of defective
material, or which because of its form, design, workmanship, age, use or
for any other reason is unsafe. The inspector shall also fix the number
of passengers that may be transported. The inspector shall require that
the boilers, on all public vessels which are propelled by steam engines,
be inspected and approved for safety of operations by inspectors of the
New York State Department of Labor, Bureau of Boilers. Every boiler and
appurtenances thereof shall be constructed, maintained and operated in
accordance with the Department of Labor rules and regulations pertaining
to boilers. The inspector shall also, whenever they deem it expedient,
visit any vessel licensed under this chapter and examine into its
condition for the purpose of ascertaining whether or not any party
thereon, having a certificate, or license, from the inspector, has
conformed to and obeyed the conditions of such certificate, and the
provisions of this chapter. The owner, master, pilot, engineer or joint
pilot and engineer of such vessel, shall answer all reasonable questions
and give all the information in their power in regard to said vessel, or
its machinery or equipment and the manner of managing the same. The
inspector provided for in this chapter is authorized to make further
rules and regulations applying generally to all vessels, or especially
to one or more of them. The inspector shall, as far as practicable, be
governed by the general rules and regulations prescribed by the United
States coast guard. To the extent applicable as determined by the
inspector exercising their duties under this section, part two of
article four of this chapter shall apply to vessels operated on
privately or publicly owned underground non-navigable waterways with no
navigable inlet or outlet that carry passengers for compensation, either
received directly or where provided as an accommodation, advantage,
facility or privilege at any place of public accommodation, resort or
amusement.
Inspector; licenses. The inspector is authorized and empowered
to grant licenses as provided in article four of this chapter.
Inspector; fees. The inspector is authorized to collect fees as
provided in article four of this chapter.
Inspector; reports. The inspector shall on or about the first
day of January in each year, make a verified report to the commissioner
containing a detailed statement of the name and registry number of each
vessel examined and licensed, the name and registry number of each
vessel to which license was refused and stating the reasons for refusal,
the name of each person examined and licensed, the name of each person
to whom license was refused and stating the reason therefor, and may
include in such report any other information the inspector deems
desirable.
Traveling navigation inspectors. The commissioner may appoint
not to exceed three traveling navigation inspectors whose qualifications
shall include a full knowledge of the navigation law and regulations
established thereunder and a practical experience in the navigation of
vessels. Such inspectors shall be employed for such periods of the year
and at such rates of pay as the commissioner may deem necessary, and
shall have the power to issue a uniform navigation summons and/or
complaint for violations of the provisions of article four of this
chapter which are applicable to vessels.
Special navigation inspectors. The commissioner may, if in his
judgment conditions so require, appoint members of local boat clubs, or
other persons found competent, to act as special navigation inspectors
during regattas authorized by him. The power and authority in such
special navigation inspectors shall be limited to the period during
which the regatta is authorized and to the enforcement of the navigation
law and special regulations. Upon the completion of the regatta, he
shall file with the commissioner a report covering the conduct of the
regatta and his activities. Such special navigation inspector shall
receive no compensation from the state. Any expense in connection with
his duties shall be borne by the person conducting the regatta.
Uniform navigation summons and complaint. 1. The commissioner
shall be authorized to prescribe the form of summons and/or complaint in
all cases involving a violation of any provision of this chapter or of
any ordinance, rule or regulation relating to navigation, or of any
class or category of such cases, and to establish procedures for proper
administrative controls over the disposition thereof. The provisions of
this subdivision shall not apply to offenses specified in paragraph b of
subdivision four of section forty-nine of this chapter.
2. The chief executive officer of each local police force including
county, town, city and village police departments, sheriffs, and the
superintendent of state police shall prepare or cause to be prepared
such records and reports as may be prescribed hereunder.
3. The commissioner shall have the power from time to time to adopt
such rules and regulations as may be necessary to accomplish the
purposes and enforce the provisions of this section including
requirements for reporting by trial courts having jurisdiction over
navigation violations.
4. The provisions of this section shall not apply to or supersede any
ordinance, rule or regulation heretofore or hereafter made, adopted or
prescribed pursuant to law in Nassau or Suffolk counties or in any city
having a population of one million or over.
5. Any person who disposes of any uniform navigation summons and/or
complaint in any manner other than that prescribed by law, rule or
regulation shall be guilty of a misdemeanor.
6. If a person charged with a violation desires to plead guilty to the
violation as charged in the summons, he shall submit to the magistrate
having jurisdiction, in person, by duly authorized agent or by
registered mail, a verified application or in lieu thereof, an
application affirmed under penalty of perjury setting forth (a) the
nature of the charge, (b) the violations, if any, of the navigation law
or of any local law or ordinance governing or regulating navigation, of
which the defendant has been convicted within a period of two years
immediately preceding the date of the impending charge, together with
the date, the name and place of the court and the disposition, with
respect to each violation, (c) the information or instructions required
by section one thousand eight hundred seven of the vehicle and traffic
law to be given defendant upon arraignment, (d) that defendant waives
arraignment in open court and the aid of counsel, (e) that he pleads
guilty to the offense as charged, (f) that defendant elects and requests
that the charge be disposed of and the fine or penalty fixed by the
court, pursuant to this subdivision, and (g) any statement or
explanation that the defendant may desire to make concerning the offense
charged. The application shall be in such form as the commissioner shall
prescribe and a copy thereof shall be handed to the defendant by the
person charging him with such violation. Thereupon the magistrate may
proceed as though the defendant had been convicted upon a plea of guilty
in open court, provided, however, that any imposition of fine or penalty
hereunder, without suspension of execution of sentence, shall be deemed
tentative until such fine or penalty shall have been paid and discharged
in full, prior to which time the magistrate, in his discretion, may
annul any proceedings hereunder, including such tentative imposition of
fine or penalty, and deny the application, in which event the charge
shall be disposed of pursuant to the applicable provisions of law, as
though no proceedings had been had under this subdivision. If upon
receipt of the aforesaid application the magistrate shall deny the same,
he shall thereupon inform the defendant of this fact, and that he is
required to appear before the said magistrate at a stated time and place
to answer the charge which shall thereafter be disposed of pursuant to
the applicable provisions of law.
Verification of complaints. Where a navigation summons has been
served by a peace officer, acting pursuant to his special duties, police
officer, or traveling navigation inspector, in cases of violations of
any provision of this chapter or of any ordinance, rule or regulation
enacted pursuant thereto or pursuant to any other law relating to
navigation, any chief, deputy-chief, captain, lieutenant or acting
lieutenant, sergeant or acting sergeant of a police department, or any
sheriff, undersheriff, chief deputy, deputy sergeant or deputy in charge
of navigation maintained by any sheriff in any county to whom the
service of the navigation summons is reported, is hereby authorized to
administer to such officer or traveling navigation inspector, all
necessary oaths in connection with the execution of the complaint to be
presented in court by such officer or traveling navigation inspector, in
the prosecution of such offense but a complaint need not be verified
provided it shall be affirmed under penalty of perjury.
ARTICLE 3 Navigable Waters of the State
Navigation, jurisdiction over. The commissioner shall have
jurisdiction over navigation on the navigable waters of the state and,
except as otherwise provided, shall enforce the provisions of this
chapter and the regulations established thereunder. As a guide to the
interpretation and application of this article, nothing authorized
hereunder shall be construed to convey any property rights, either in
real estate or material, or any exclusive privilege; nor authorize any
injury to private property or invasion of private rights or any
infringement of federal, state or local laws or regulations, but shall
express the assent of the state so far as it concerns the public rights
of navigation. Nothing contained in this section shall be construed to
limit, impair or affect the general powers and duties of the canal
corporation relating to canals as set forth in section ten of the canal
law.
Excavation, fill or other modification of water course. No
person or local public corporation shall excavate or place fill in the
navigable waters of the state without first obtaining a permit therefor
in conformity with the provisions of section 15-0505 of the
environmental conservation law.
Location of structures in or on navigable waters. 1.
Notwithstanding the provisions of subdivision two of section forty-six-a
of this chapter, no wharf, dock, pier, jetty, platform or other
structure built on floats, columns, open timber, piles or similar
open-work supports, temporary or permanent, shall be constructed,
installed, repaired, modified, expanded or otherwise placed by any
person in the navigable waters of the state or in a navigable channel or
replaced by any person in such waters or channel on or after the
effective date of this section after having been removed from such
waters or channel for a period in excess of thirty days so as to
interfere with the free and direct access to such waters from the
property, wharf, dock or similar structure of any other person unless
written permission is obtained therefor from such other person.
2. In case any written complaint shall be filed with the commissioner
of general services and he shall have cause to believe, or in case the
commissioner himself shall have cause to believe, that any person is
violating the provisions of this section or any rule or regulation
promulgated pursuant to this section, the commissioner shall cause a
prompt investigation to be made.
3. The commissioner shall have the power, after hearing on due notice,
to make and serve an order, setting forth the findings of fact and
conclusions therefrom, directing any person constructing, installing,
repairing, modifying, expanding or otherwise placing or using any such
structure to either move or remove the said structure or to reconstruct,
repair or modify the same within such reasonable time and in such manner
as shall be specified in said order, and it shall be the duty of every
such person to obey, observe and comply with such order and the
conditions therein prescribed. The commissioner is authorized to adopt,
amend, repeal and enforce such rules and regulations as he may deem
necessary to govern administrative procedures applicable to hearings
under this section.
4. It shall be unlawful for any person to fail, omit or neglect to
comply with such order or to fail to move, remove, reconstruct, repair
or modify said structure as provided in the order within a reasonable
time as designated by the commissioner.
5. Any person who fails, omits or neglects to comply with or otherwise
violates any such order shall be liable for a civil penalty of not more
than one hundred dollars for such violation and an additional civil
penalty of not more than one hundred dollars for each day during which
such violation continues, to be assessed by the commissioner.
6. The commissioner is hereby authorized to commence an action or
proceeding in a court of competent jurisdiction to compel compliance
with any order made and to recover any penalty assessed pursuant to the
provisions of this section.
7. Any civil penalty or order issued by the commissioner under this
section shall be reviewable in a proceeding under article seventy-eight
of the civil practice law and rules.
8. The provisions of this section shall not apply to marine terminals
including piers, wharves, docks, bulkheads, slips, basins and other
structures or facilities used in the transportation of waterborne cargo
or passengers in interstate or foreign commerce.
Using net or weir unlawfully in Hudson river. A person, who
uses any net or weir for setting or attaching nets, or a pole or other
fixture in any part of the Hudson river, except as permitted by statute,
is guilty of a misdemeanor.
Lights upon swing bridges. A corporation, company, or
individual, owning, maintaining or operating a swing bridge across the
Hudson river, who during the navigation season between sundown and
sunrise, neglects to keep and maintain upon every such bridge the lights
required by law, is guilty of a misdemeanor.
Interfering with navigation. A person who throws, or causes,
or permits to be thrown, from any boat, scow, or other vessel, or in any
other manner, into the tidewaters bordering on or lying within the
boundaries of Nassau and Suffolk counties or any of the navigable waters
of this state, including bays, sounds and harbors, any earth, ashes,
cinders, stone, or other material, or who builds any structure therein,
which will in any manner lessen the depth of such waters, or interfere
with the free and safe navigation thereof, is guilty of a misdemeanor.
Dumping or depositing of certain materials in the Genesee
river. Except as specifically authority by law, no person shall dump or
deposit, or allow to be dumped or deposited, logs, lumber, timber,
fabricated wood products or wood debris in the Genesee river which may
interfere with the free and safe navigation thereof. A violation of the
provisions hereof shall be a misdemeanor punishable by a fine of not to
exceed one hundred dollars, or by imprisonment of not more than thirty
days, or by both such fine and imprisonment.
Restriction and regulation of structures in certain towns and
villages in the county of Niagara. The local legislative body of the
towns of Lewiston and Porter and the villages of Youngstown and Lewiston
for the purpose of responsible shoreline management, may adopt, amend
and enforce local laws, rules and regulations not inconsistent with the
laws of this state or of the United States, with respect to the
restriction and regulation of the manner of construction and location of
structures in the Niagara River within or bounding the towns of Lewiston
and Porter and the villages of Youngstown and Lewiston to a distance of
one-half the width of the river or up to the United States-Canadian
border. Structures may include boathouses, wharfs, piers, docks, jetties
or other types of structures which are non-permanent in nature or which
are otherwise not subject to permit requirements.
Deposit of refuse in navigable waters of the state. No person
shall drain, deposit or cast any dead animal, carrion, offal, excrement,
garbage or other putrid or offensive matter into the navigable waters of
the state or any tidewaters bordering on or lying within the boundaries
of Nassau and Suffolk counties, except as the same may be authorized by
the state department of health. Every person violating the provisions of
this section shall upon conviction by any court of competent
jurisdiction be guilty of a misdemeanor punishable by a fine of not to
exceed one hundred dollars, or by imprisonment of not more than one
year, or by both such fine and imprisonment for each offense. The
district attorney of the county, in which the offense is committed or
exists, is authorized and directed to prosecute such offender or
offenders.
Sanitary facilities aboard craft on Lake George, Canandaigua
Lake, Keuka Lake, Skaneateles Lake and on Greenwood Lake, Orange county.
It shall be unlawful for any owner or operator or for a marina or other
business to launch, moor, dock or operate any craft, or permit such
launching, mooring or operating of any craft upon Lake George, upon
Canandaigua Lake, upon Keuka Lake, upon Skaneateles Lake, and upon
Greenwood Lake, Orange county, their tributaries or outlets, equipped
with toilets, sinks, tubs, showers, or other equipment resulting in the
drainage of waste water or other sanitary facilities which in any manner
discharge into the waters of the lake, its tributaries or outlet. All
such toilets, sinks, tubs, showers, or other equipment resulting in the
drainage of waste water, or other sanitary facilities, shall be removed
or sealed or made to drain into a tank or reservoir which can be carried
or pumped ashore for disposal according to the regulations of local
boards of health or county and state health agencies. Failure to comply
with the provisions of this section aboard craft on Lake George,
Canandaigua Lake, Keuka Lake, and on Greenwood Lake, Orange county shall
be a misdemeanor punishable by a fine of not to exceed one hundred
dollars, or by imprisonment of not more than one year, or by both such
fine and imprisonment. Failure to comply with the provisions of this
section aboard craft on Skaneateles Lake shall be a misdemeanor
punishable by a fine not to exceed five hundred dollars, or by
imprisonment of not more than one year, or by both such fine and
imprisonment.
Dumping or depositing trash and other debris in Chautauqua
lake and its tributaries; ice fishing shanties on lakes within the state
of New York; identification of duck blinds. Any person who dumps,
deposits or allows or causes to be dumped or deposited in any manner any
trash, glass, bottles, garbage or any other debris in the waters of
Chautauqua lake or its tributaries, or upon the shore line adjacent
thereto, or upon the ice covering the waters of Chautauqua lake, or any
person who constructs, moves, places or causes or allows to be
constructed, moved or placed any structure upon the ice covering the
waters of lakes within the state of New York, shall be guilty of, a
violation punishable by a fine of not to exceed one hundred dollars,
unless the person who constructs, moves, places or causes or allows to
be constructed, moved or placed any structure upon the ice covering the
waters of lakes within the state of New York shall have placed thereon
with paint or in some other permanent manner the owner's full name in
characters at least three inches high and his address in a contrasting
color to the surrounding structure, and provided further the said
structure is removed not later than the fifteenth day of March in each
year or such other date as may be set by the department of environmental
conservation. Every duck blind, placed in the waters of lakes within the
state of New York, shall have prominently placed thereon, in some
permanent manner, the owner's full name and address, and further each
duck blind so placed shall be removed from the water no later than the
fifteenth day of March following its placement. The wilful failure of an
owner of a duck blind to affix such identification or remove it from the
water by the prescribed date shall subject said owner to a fine of one
hundred dollars.
Regulating disposal of sewage; littering of waterways. 1. As
used in this section, unless the context clearly indicates otherwise:
(a) The term "watercraft" means any contrivance used or capable of
being used for navigation upon water whether or not capable of
self-propulsion, except passenger or cargo-carrying vessels subject to
the Quarantine Regulations of the United States Public Health Service
adopted pursuant to Title forty-two of the United States Code.
(b) The term "marina" means any installation which provides any
accommodations or facilities for watercraft, including mooring, docking,
storing, leasing, sale, or servicing of watercraft, located adjacent to
waters of the state.
(c) The term "sewage" means all human body wastes.
(d) The term "litter" means any bottles, glass, crockery, cans, scrap
metal, junk, paper, garbage, rubbish, trash, or similar refuse.
(e) The term "marine toilet" means any toilet on or within any
watercraft, except those that have been permanently sealed and made
inoperative.
(f) The term "waters of this state" means all of the waterways, or
bodies of water located within New York state or that part of any body
of water which is adjacent to New York state over which the state has
territorial jurisdictions on which watercraft may be used or operated.
(g) The term "person" means an individual, partnership, firm,
corporation, association, or other entity.
(h) The term "department" means the state department of environmental
conservation, except as otherwise provided in this section.
(i) The term "marine holding tank" means any container aboard any
vessel that is designed and used for the purpose of collecting and
storing treated or untreated sewage from marine toilets.
(j) The term "pumpout facility" means any device, portable or
permanent, capable of removing sewage from a marine holding tank.
2. (a) No person, whether engaged in commerce or otherwise, shall
place, throw, deposit, or discharge, or cause to be placed, thrown,
deposited, or discharged into the waters of this state, from any
watercraft, marina or mooring, any sewage, or other liquid or solid
materials which render the water unsightly, noxious or otherwise
unwholesome so as to be detrimental to the public health or welfare or
to the enjoyment of the water for recreational purposes.
(b) No person, whether engaged in commerce or otherwise, shall place,
throw, deposit or discharge, or cause to be placed, thrown, deposited,
or discharged, any litter into the waters of this state or upon any
public lands contiguous to and within one hundred feet of such waters or
upon any private lands contiguous to and within one hundred feet of such
waters unless such lands are owned by such person or unless such person
enters or remains with the permission of the owner of record or his
representative or agent.
3. (a) No marine toilet on any watercraft used or operated upon waters
of this state shall be operated so as to discharge any untreated sewage
into said waters directly or indirectly.
(b) No person owning or operating a watercraft with a marine toilet
shall use, or permit the use of, such toilet on the waters of this state
unless the toilet is equipped with facilities that will adequately
treat, hold, incinerate or otherwise handle sewage in a manner that is
capable of preventing water pollution, as required by this section.
(c) Except as provided in subdivisions four and seven of this section,
no container of sewage shall be placed, left, discharged or caused to be
placed, left or discharged in or bordering any waters of this state by
any person at any time.
4. (a) Every marine toilet on watercraft used or operated upon the
waters of this state shall be equipped with a pollution control device,
either for the treatment or holding of sewage, in operating condition,
of a type approved by the state health department, in conformance with
applicable public health standards and rules and regulations; and
approved by the department in conformance with the boating safety
standards and rules and regulations adopted by the department. Pollution
control devices shall be securely affixed to the interior discharge
opening of marine toilets and all sewage passing into or through such
toilets shall pass solely through such treatment facilities.
(b) Sewage passing through a marine toilet equipped with a chlorinator
or chemical treatment facility shall be deemed untreated unless the
effluent meets standards established by the state commissioner of
health.
(c) The disinfecting agent used in the facility shall be of a kind
which when discharged as a part of the effluent is not toxic to humans,
fish or wildlife.
(d) The active ingredient in deodorizers used in marine toilets may
only consist of formaldehyde, enzymes, bacterial cultures or any other
ingredient which would not interfere with the operation of sewage
treatment plants. No zinc or other heavy metal or phenol may be used in
any marine toilet.
5. No marine toilet pollution control device shall be used, sold or
physically offered for sale in this state unless it is of a type which
has officially been approved by the department. The department approval
shall be issued only after approval of such devices by the state
department of health, as required by subdivision four of this section.
Notice of such approval may be required by the department to be
displayed on the pollution control device.
6. The department shall require persons making application for a boat
registration certificate for a watercraft pursuant to section
seventy-one of the navigation law to disclose whether such watercraft
has within or on it a marine toilet, and if so, to certify that such
toilet is equipped with a pollution control device as required by this
section. The department is further empowered to direct that the issuance
of a boat registration certificate or a renewal thereof be withheld if
such device had not been installed as provided in this section.
7. The owner or whoever is lawfully vested with the possession,
management or control of a marina shall be required to provide suitable
trash receptacles or similar devices designed for the depositing of
litter at locations where they can be conveniently utilized by
watercraft users.
8. All marinas that provide pumpout facilities and dump stations for
the handling and disposal of sewage from marine holding tanks and
portable toilets shall do so in a manner that will prevent the pollution
of the surface waters of the state. The facilities for unloading and
disposal of such sewage shall be approved by either the local or the
state health department in accordance with guidelines set forth by the
department in consultation with the department of health. The department
of environmental conservation shall require that municipal sewage
treatment facilities accept such waste originating from marine holding
tanks and portable toilets unless the commissioner determines that such
action would cause an unacceptable threat to human health or the
environment or the operation of a sewage treatment plant.
9. All watercraft located upon waters of this state shall be subject
to boarding and inspection by the department or health department or any
lawfully designated agents or inspectors thereof, for the purpose of
determining whether such watercraft is equipped with approved marina
toilet pollution control facilities operated in compliance herewith.
10. Any municipality within which a vessel waste no-discharge zone has
been designated pursuant to subdivision one of section thirty-three-e of
this article or any municipality adjacent to which a vessel waste
no-discharge zone has been designated pursuant to subdivision one of
section thirty-three-e of this article, may adopt and enforce local
laws, not inconsistent with section thirty-three-e of this article,
prohibiting the discharge of vessel wastes in waters within such
municipality, or in waters adjacent to such municipality to a distance
of one thousand five hundred feet from shore. Nothing in this section
shall preclude the political subdivisions of Nassau and Suffolk counties
from regulating gray water discharge from residential vessels moored on
tidewaters bordering on and lying within the boundaries of Nassau or
Suffolk county.
11. The department is hereby authorized and empowered to make, adopt,
promulgate, amend and repeal such standards and rules and regulations as
are necessary, or convenient for the carrying out of duties and
obligations and powers conferred on the department by this section.
12. A copy of the regulations adopted pursuant to this section and any
of the amendments thereto, shall be filed in the office of the
department, the health department, the water resources commission, and
in the office of the secretary of state. Rules and regulations and
standards shall be published by the department in convenient form.
13. (a) Any person who violates paragraph (b) of subdivision two of
this section, shall be guilty of an offense and upon conviction shall be
punished with a fine of not more than two hundred fifty dollars, or by
imprisonment of not more than sixty days, or by both such fine and
imprisonment; provided, however, that in the event any person violates
this section more than twice during the same calendar year and is
convicted of more than two such violations, the third and each
subsequent violation shall be deemed a misdemeanor.
(b) Any person who violates any other provision of this section or
regulations of the department adopted pursuant hereto shall be deemed
guilty of a misdemeanor and upon conviction shall be punished with a
fine of not more than one hundred dollars, or by imprisonment of not
more than sixty days, or by both such fine and imprisonment.
14. Any action taken by the department or the state department of
health pursuant to subdivisions five or six of this section shall be
subject to review by the supreme court in the manner provided by article
seventy-eight of the civil practice law and rules provided that no stay
shall be granted pending the determination of the matter except on
notice to the department and the state department of health and for a
period not exceeding thirty days.
Proceedings to review any action enumerated herein shall be entitled
to a preference.
15. If any court shall find any subdivision or subdivisions of this
section to be unconstitutional or otherwise invalid, such findings shall
not affect the validity of any sections of this act which can be given
effect.
16. Nothing in this section, shall be deemed to repeal, amend, modify
or alter the provisions of article twelve of the public health law or
the provisions of sections thirty-three-a and thirty-three-b of the
navigation law.
Sanitary facilities aboard crafts on Lake Champlain. It shall
be unlawful for any owner or operator of any craft upon Lake Champlain,
its tributaries or outlets, to operate any craft equipped with a marine
toilet which in any manner discharges sewage into the waters of said
lake, its tributaries or outlets. All marine toilets on any such craft
shall also incorporate or be equipped with a holding tank which can be
carried or pumped ashore for disposal according to the regulations of
local boards of health or county or state health agencies. Any holding
tank designed so as to provide for an optional means of discharge to the
waters on which the craft is operating shall have the discharge openings
sealed shut and any discharge lines, pipes or hoses shall be removed or
disconnected and stored while operating on the waters of said lake, its
tributaries or outlets. Failure to comply with the provisions of this
section shall be a violation punishable by a fine not to exceed two
hundred fifty dollars or by imprisonment of not more than fifteen days
or by both such fine and imprisonment.
Marine sanitation devices aboard vessels in vessel waste
no-discharge zones. 1. Any waters of the state of which the commissioner
has received an affirmative determination regarding the adequate
availability of marine sanitation device pump-out or dump station
facilities pursuant to the Federal Clean Water Act, are hereby
designated as vessel waste no-discharge zones.
2. It shall be unlawful for any operator or person in control of a
vessel being operated upon any waters of the state designated as vessel
waste no-discharge zones to discharge sewage from marine toilets into
such waters. Any marine sanitation device on board any vessel being
operated in such waters must be secured to prevent any marine sanitation
device discharges to such waters. In accordance with federal
requirements, any marine sanitation device aboard any vessel being
operated upon any waters within such vessel waste no-discharge zone
shall be secured by closing the seacock and padlocking, using a
non-releasable wire-tie, removing the seacock handle or locking the door
to the "head" while such vessel is being operated upon waters within
vessel waste no-discharge zones. If a marine sanitation device on any
such vessel provides a means of discharging sewage directly to such
waters, the discharge valve must be secured in a readily visible manner
and closed position while the vessel is being operated upon such waters.
Use of a padlock, heavy non-resealable tape, wire-tie, or the removal
of the valve handle are adequate methods of securing the device. The
method chosen shall be one that presents a physical barrier to the use
of the valve. It is unlawful for any person operating or in control of a
vessel with a marine sanitation device on board to operate or control
such vessel in a vessel waste no-discharge zone when the marine
sanitation device is not secured in the manner described herein.
3. The provisions of subdivision two of this section, requiring that
marine sanitation devices be rendered inoperable, shall not apply while
the wastes from the marine sanitation device are being lawfully disposed
of in an approved marine sanitation device pump-out or dump station
located within a vessel waste no-discharge zone.
4. Any vessel being operated upon waters of the state that have been
designated as vessel waste no-discharge zones may be boarded and
inspected by the department or health department or any lawfully
designated agents or inspectors thereof, acting pursuant to their
special duties in accordance with subdivision nine of section
thirty-three-c of this article for the purpose of determining whether
such vessel is being operated in compliance with this section.
5. Failure to comply with the provisions of this section shall be a
violation punishable by a fine not to exceed five hundred dollars. Any
subsequent failure by the same operator or person in control of a vessel
to comply with the provisions of this section shall be a violation
punishable by a fine not to exceed one thousand dollars.
Regattas. The commissioner may authorize the holding of regattas
or boat races on any navigable waters of the state within his
jurisdiction. He shall adopt and may, from time to time, amend
regulations concerning the safety of vessels and the passengers and
other persons thereon, either observers or participants. Whenever a
regatta or boat race is proposed to be held on such waters, the person
in charge thereof, shall, at least fifteen days prior thereto, file an
application with the commissioner in his office at Albany for permission
to hold such regatta or boat race. The application shall set forth the
date and location where it is proposed to hold such regatta or boat
races and it shall not be conducted without authorization of the
commissioner in writing. A copy of the regulations adopted pursuant to
this section, and of any amendments thereto, shall be filed in the
office of the commissioner and in the office of the department of state.
A copy of such regulations shall be furnished by the commissioner to any
person making due application therefor. Any person who shall violate
any regulation adopted pursuant to this section shall for every such
violation forfeit to the people of the state the sum of not to exceed
two hundred and fifty dollars to be recovered in a civil action.
Permits for racing shell regattas not required. Nothing
contained in section thirty-four of this chapter or in any other general
or special law shall be deemed or construed as requiring any permit or
permission to hold a regatta or race of rowing shells by any educational
institution or amateur rowing organization in navigable waters of the
state. For the purpose of this section, a "racing shell" is defined to
mean any boat, specially designed for racing and propelled solely by
means of oars, not including lifeboats or standard type rowboats, not
specifically designed for rowing races. Any educational institution or
amateur rowing organization, however, shall file with the commissioner a
notification of all races to be held, setting forth the dates, places, a
description of the course and the number of entrants in each race. No
fee shall be charged for such filing.
Aids to navigation. The commissioner may authorize, through the
issuance of a revocable permit, the placing of aids to navigation in the
navigable waters of the state, and any tidewaters bordering on or lying
within the boundaries of Nassau and Suffolk counties, to mark
obstructions to navigation, or for any other purpose, if, in his
judgment, it will promote safety of navigation. Any person interested in
the navigation of the navigable waters of the state, and any tidewaters
bordering on or lying within the boundaries of Nassau and Suffolk
counties, who may desire to place such aids to navigation therein,
without expense to the state, may make application to the commissioner
and submit a map suitable for blue print reproduction showing the
proposed location of such aids to navigation and their color and
meaning. The commissioner shall make rules and regulations establishing
the size, shape, color and significance of such aids to navigation. When
authorization has been granted the said aids to navigation shall be
deemed lawfully placed. If, in the judgment of the commissioner, aids to
navigation authorized by him are found to be improperly placed or that
the reason for their placement no longer exists, he may revoke the
permit authorizing their placement by written notice mailed to the
person to whom the permit was issued directing their removal within a
specified time. The person to whom such notice is directed shall
thereupon remove the aids to navigation in accordance with such
instructions. In case of failure by the person so directed to remove the
aids to navigation within the specified time, the commissioner may cause
their removal. The cost and expense of such removal shall be a charge
against the person authorized to place the aids to navigation and it
shall be recoverable through action in any court of competent
jurisdiction. Each aid to navigation lawfully placed shall bear in a
conspicuous place and in legible condition the letters "NYS". Any person
placing such designating letters on an aid to navigation not lawfully
placed, in accordance with this section, shall be guilty of a
misdemeanor and upon conviction by a court of competent jurisdiction
shall be subject to a fine of not more than twenty-five dollars for each
and every offense. Any person who shall moor or fasten a vessel to a
lawfully placed aid to navigation or shall wilfully damage, alter the
location of, or otherwise render ineffective a lawfully placed aid to
navigation shall be guilty of a misdemeanor and upon conviction before a
court of competent jurisdiction shall be subject to a fine of not more
than fifty dollars for each and every offense.
Floating objects other than aids to navigation. 1. The
commissioner may authorize, through the issuance of a revocable permit,
the placing in the navigable waters of the state, of mooring buoys,
bathing beach markers, swimming floats, speed zone markers, or any other
floating object having no navigational significance, if in his opinion
the placing of such floating object will not be a hazard to navigation.
2. The commissioner is hereby authorized to make rules and regulations
for the issuance of such permits and he shall establish a uniform system
of marking all floating objects that he authorizes to be placed.
3. Adjacent upland owners may place one mooring buoy and one swimming
float of not more than one hundred square feet of surface area, in the
waters adjacent to and within the boundaries of their shoreline,
provided however, that no floating object and no vessel or part thereof
which is secured to a mooring buoy shall at any time extend more than
one hundred feet from shore and further provided that no floating object
may be placed in a navigable channel or in any location in which it will
interfere with free and safe navigation or free access to another
person's property. The commissioner shall have the right to remove or
alter the location of any such buoy or float in the interest of
navigation.
4. The commissioner may, by rule, regulation, or order, designate
lakes, or areas within lakes, in which fishing buoys may be placed. The
commissioner shall specify the size, shape, color and material of
construction for such buoys, the manner of placing same and the type of
ground tackle to be used. No fishing buoys may be placed in the
navigable waters of the state except as specified by the commissioner in
rules and regulations authorized herein.
5. The commissioner may prescribe a reasonable service charge to cover
the cost of issuance of permits authorized by this section. Revenues
from such service charges shall be deposited into the "I love NY
waterways" boating safety fund established pursuant to section
ninety-seven-nn of the state finance law.
6. The provisions of this section which pertain to the mooring of
vessels shall not apply to areas in which local ordinances so pertaining
have been duly approved by the commissioner or in which areas federal
laws or rules and regulations regulate the anchoring or mooring of
vessels.
7. A violation of this section or the rules and regulations authorized
herein shall constitute an offense punishable by a fine of not to exceed
fifty dollars.
Markers for skin or scuba divers. 1. The commissioner is
hereby authorized to make rules and regulations requiring the use of a
red flag with a diagonal white bar to be displayed on the water or from
a boat by skin divers or scuba divers which would indicate underwater
diving and significantly mark their position in such waters. The
commissioner shall specify the size, shape, material of construction and
manner of placing such markers.
2. A violation of such rules and regulations so established pursuant
to subdivision one herein, shall constitute an offense punishable by a
fine not to exceed fifty dollars.
Real time and wind water level telemetry system. 1.
Establishment of system. The seceretary of state shall arrange for the
establishment of a real time and wind water level telemetry system to
inform and assist users of the harbors and waterways of the state.
2. General functions and powers. To provide for such a real time and
wind water level telemetry system, the department of state shall have
the power, duty and authority:
a. To arrange for the construction, installation, operation and
maintenance of a computerized information system based on water level
gauges and other remote sensing devices, starting from lower New York
harbor and the lower Hudson river to Haverstraw bay and the Albany area
and including the entrance to Long Island sound extending, as user
demand may warrant, to other ports and waterways of the state;
b. To arrange for the establishment of a schedule of fees to be
charged to actual users for the information provided from such a system,
adequate to amortize the cost of installation and construction, to
recover the annual costs of operation and maintenance and to collect
such fees; and
c. To report annually to the governor and the legislature on the
operation of the program for the year preceding and plans and
recommendations for the future.
3. Specific functions. To carry out this program the department of
state may:
a. Develop and promulgate orders, rules and regulations to effectuate
the purposes of this section;
b. Contract with public or private organizations to perform the
various activities required by this section, including construction,
operation, maintenance, collection of fees and monitoring of the
program;
c. Designate employees of the department of state who shall be
empowered to examine the records of such contractors as to the
collection and expenditure of funds;
d. Apply for, accept and expend any federal or other monies made
available for the purposes of this section;
e. Require and receive assistance from any agency of the state or any
political subdivision thereof in the furtherance of this program;
f. Act as the agent of the state, when required by this program, in
arranging cooperative agreements with other states and Canada; and
g. Set up an advisory committee of experts and representatives of
other public and private agencies to facilitate the program's execution.
Aquatic invasive species signs at public boat launches. 1. The
department of environmental conservation shall design and establish
universal signage which may be posted at any access point to the
navigable waters of the state relating to the threat and mitigation of
aquatic invasive species, as defined in subdivision ten of section
9-1703 of the environmental conservation law, in the waters of the
state. The department shall provide the universal signage on its website
in a downloadable format.
2. Commencing within one year of the effective date of this section,
owners of each public boat launch shall conspicuously post the universal
sign of not less than eighteen inches by twenty-four inches, established
pursuant to subdivision one of this section, at each public boat launch
in the state.
Removal of unauthorized floating object. No unattended floating
object shall be anchored within the navigable waters of the state for
any purpose, except as same may be authorized under the United States
laws, rules and regulations or by section thirty-five and thirty-five-a
of this chapter or by local ordinances as may be duly approved by the
commissioner. Any person finding such anchored object is authorized to
remove the same.
Public use of privately owned navigable waters. The provisions
of this chapter shall apply to privately owned navigable waters to which
the public has or is granted access, for compensation or otherwise, for
boating, bathing, swimming or other recreational uses or purposes.
Lake George water levels. Any dam or other similar structure so
located in the outlet of Lake George as to affect the water levels of
the lake shall, with due allowance for fluctuations due to natural
causes or to emergencies and for a reasonable use of water for power and
for sanitary purposes, be operated in such a manner as to maintain the
waters of the lake from the first day of June to the thirtieth day of
September in each year as nearly as may be at an average level of three
and five-tenths feet on the gage of the United States Geological Survey
at Rogers Rock on Lake George, known as Rogers Rock gage, and in such a
manner as to maintain the waters of the lake from the first day of
October to the first day of December at a level which shall not fall
below two and five-tenths feet on said gage; and, consistent with the
above mentioned fluctuations and reasonable use, the waste gates of any
such dam or other structure shall be operated so that, to the extent
possible, the waters of the lake will not be permitted to rise above a
level of four feet on such gage at any time during the year or to fall
below a level of two and five-tenths feet on said gage at any time after
the first day of June and prior to the first day of December in any
year. If at any time during the year the waters of the lake shall rise
above such level of four feet any person owning or operating such dam or
other structure shall immediately open the waste gates thereof and take
such other appropriate action as in the judgment of the water resources
commission may be necessary to lower the waters of the lake with the
least practicable delay to a level not higher than four feet of said
gage. If at any time after the first day of June and prior to the first
day of December in any year the waters of the lake shall fall below such
level of two and five-tenths feet such person shall immediately close
the waste gates of such dam or other structure; and no person shall
withdraw water from the lake for the purpose of generating power during
any period of time between the first day of June and the first day of
October in any year when the level of the waters of the lake is below
two and five-tenths feet on said gage. The water resources commission or
its duly authorized representative shall at all times have access to
such dam or other structure and is hereby authorized and directed to
operate the waste gates thereof whenever necessary for the purpose of
carrying out the provisions of this section. The water resources
commission shall establish such rules and regulations as in its judgment
may be necessary for the enforcement of the provisions of this section,
and it is hereby authorized to enter into such agreement or agreements
with any person or persons owning or operating any such dam or other
structure as in its judgment may be necessary in order to carry into
effect the provisions of this section and of such rules and regulations.
In addition, the water resources commission shall, once in each year
during the first week in July, cause to be published in at least three
daily newspapers serving the area the reading on the Rogers Rock gage on
the first day of July in that year. Any person violating any provision
of this section or of any rule or regulation established or of any
agreement entered into pursuant thereto shall for every such violation
forfeit to the people of the state the sum of not to exceed two hundred
fifty dollars to be recovered in a civil action.
Motor boat regulation on Lake George. 1. Definitions. The term
"motor boat" shall be deemed to mean and include a mechanically
propelled vessel having a source of power other than propulsion by wind
propelled sail or human propelled oar or paddle. The term shall also
include a craft temporarily or permanently equipped with a detachable
motor, commonly known as an "outboard" motor boat.
2. No motor boat shall be operated in the stream and marshland south
of the Dunham's Bay highway bridge (Route 9L) south of a point which is
approximately eighteen hundred feet south of the south side of the Route
9L Dunham's Bay highway bridge, at which point there will be anchored in
the water two large floating buoys warning that motor boats are
prohibited beyond said point.
3. No motor boat shall be operated in the stream and marshland south
of the point where 9L crosses the Warner Bay inlet stream south of a
point which is approximately one thousand feet south of the south side
of Route 9L at the center of its crossing over the Warner Bay inlet
stream at which point there will be anchored in the water two large
floating buoys warning that motor boats are prohibited beyond said
point.
4. No motor boat shall be operated in the stream or marshland in
Harris Bay of Lake George south of Route 9L, and warning buoys shall be
installed in the open water area south of Route 9L.
5. The expense attached to the purchase of the buoys, mentioned in
subdivisions two, three and four of this section, which after their
installation shall become part of the Lake George buoyage system, shall
be payable from moneys available therefor by appropriation and from
moneys, if any, contributed by persons, towns and counties interested.
6. Penalties for violations. A person violating any of the provisions
of this section shall be deemed guilty of a violation and punishable by
a fine of not more than fifty dollars or imprisonment for not more than
ten days or by both such fine and imprisonment.
Motor boat regulation on Lake Colby. 1. The term "motor boat"
shall mean and include a mechanically propelled vessel having a source
of power in excess of ten horsepower other than propulsion by wind
propelled sail or human propelled oar or paddle. Such term shall also
include a vessel temporarily or permanently equipped with a detachable
motor, commonly known as an "outboard" motor boat.
2. No motor boat shall be operated on Lake Colby, in the town of
Harrietstown, county of Franklin.
3. The provisions of this section shall not apply to emergency and
rescue vessels and vessels operated for the official functions of a
federal, state or local governmental agency.
4. A person violating any provision of subdivision two of this section
shall be guilty of a violation punishable by a fine of not more than
fifty dollars, or imprisonment for not more than ten days, or by both
such fine and imprisonment.
* § 39-b. Motor boat regulation on Flax Pond tidal wetlands sanctuary.
1. The term "motor boat" shall mean and include a mechanically propelled
vessel having a source of power other than propulsion by wind propelled
sail or human propelled oar or paddle. The term shall also include a
craft temporarily or permanently equipped with a detachable motor,
commonly known as an "outboard" motor boat.
2. No motor boat shall be operated on the Flax Pond tidal wetlands
sanctuary established pursuant to section 11-0306-a of the environmental
conservation law. Signs shall be posted warning that motor boats are
prohibited in the tidal wetlands.
3. The provisions of this section shall not apply to emergency and
rescue vessels and vessels operated for the official functions of a
federal, state or local governmental agency.
4. A person violating any of the provisions of this section shall be
deemed guilty of a violation and punishable by a fine of not more than
one hundred dollars or imprisonment for not more than ten days or by
both such fine and imprisonment.
* NB Effective and Repealed June 21, 2023
ARTICLE 4 No title
PART 1 Vessels, General
Equipment. Equipment required herein shall be carried on every
vessel except as otherwise provided, while underway, or at anchor with
any person aboard, while on the navigable waters of the state and any
tidewaters bordering on or lying within the boundaries of Nassau and
Suffolk counties. Should the federal government adopt vessel equipment
requirements different from those contained in this section, the
commissioner shall be authorized to adopt rules and regulations
superceding the vessel equipment requirements of this section to achieve
consistency with federal standards, and shall submit such proposed rules
and regulations to the secretary of state in accordance with the state
administrative procedure act within thirty days of the adoption of
federal equipment requirements or submit a statement as to why such
conforming changes are not being proposed.
1. Personal flotation devices.
(a) Every pleasure vessel and every rowboat, canoe and kayak shall
have at least one wearable personal flotation device for each person on
board, which shall be of a type approved by the United States coast
guard and shall be in good condition.
(b) Pleasure vessels sixteen feet and greater in length shall carry at
least one type IV throwable personal flotation device which shall be of
a type approved by the United States coast guard and shall be in good
condition.
(c) Every operator or person in charge or control of a pleasure
vessel, rowboat or canoe, as described in paragraphs (a) and (b) of this
subdivision, shall be responsible for compliance with the provisions of
this subdivision.
(d) No person shall operate a pleasure vessel of Class A, one, two or
three as classified and defined in subdivision one of section
forty-three of this article or a rowboat, canoe or kayak nor shall the
owner of such vessel while on board such vessel knowingly permit its
operation, unless each person on such vessel under the age of twelve is
wearing a securely fastened United States Coast Guard approved wearable
personal flotation device of an appropriate size when said vessel is
underway. The provisions of this paragraph shall not apply to any person
on such vessel under the age of twelve who is within a fully enclosed
cabin.
(e) No owner or operator of a pleasure vessel less than twenty-one
feet, including rowboats, canoes, and kayaks shall permit its operation,
between November first and May first, unless each person on board such
vessel is wearing a securely fastened United States Coast Guard approved
wearable personal flotation device of an appropriate size when such
vessel is underway.
2. Whistle. Every vessel and every rowboat, canoe and kayak shall be
provided with an efficient whistle. The word "whistle" shall mean any
sound producing mechanical appliance, except sirens, capable of
producing a blast of two seconds or more in duration and of such
strength as to be heard plainly for a distance of at least one-half mile
in still weather. A siren whistle may only be attached to a vessel
operated by a police department, fire department or public utility
company, and used only on emergency calls. On vessels less than
thirty-nine feet in length, a mouth whistle capable of producing a blast
of two seconds or more in duration, which can be heard for at least
one-half a mile, may be used.
3. Anchors. Every mechanically propelled vessel shall carry an anchor
and cable of sufficient weight and strength to provide a safe anchorage
for such vessel. It shall be the duty of the master of such vessel to
exercise reasonable care and caution and maritime skill in everything
relating to the safe anchorage of his vessel.
4. Carburetor backfire flame arresters. The carburetor of every
gasoline engine installed in a mechanically propelled vessel after April
twenty-five, nineteen hundred forty, except outboard motors, shall be
fitted with a United States coast guard approved device for arresting
backfire.
5. Classification of fire extinguishers. Hand portable fire
extinguishers capable of extinguishing gasoline, oil or grease fires
shall be classified as prescribed and approved by the commissioner.
6. Fire extinguishers required. (a) Every mechanically propelled
vessel as classified and defined by subdivision one of section
forty-three of this article, except outboard motor boats less than
twenty-six feet in length, of open construction, shall carry United
States coast guard approved fire extinguishers in accordance with the
following:
Class A motor boats shall carry one 5-B fire extinguisher.
Class 1 motor boats shall carry one 5-B fire extinguisher.
Class 2 motor boats shall carry two 5-B fire extinguishers.
Class 3 motor boats shall carry three 5-B fire extinguishers.
Class 4 motor boats shall carry fire extinguishers and other fire
fighting equipment as required by the federal navigation law and rules
and regulations made by the United States coast guard for uninspected
vessels.
(b) One class 20-B fire extinguisher may be substituted for two class
5-B fire extinguishers.
(c) When the engine compartment of the motor boat is equipped with a
fixed fire extinguishing system of a United States coast guard approved
type, one less class 5-B fire extinguisher is required.
(d) No fire extinguishers of the toxic vaporizing liquid type,
including those containing carbon tetrachloride and chlorobromomethane
extinguishing agents shall be approved by the commissioner.
(e) Disposable fire extinguishers are considered expired twelve years
after their date of manufacture. Expired or previously used fire
extinguishers do not meet the requirements of paragraph (a) of this
subdivision.
7. Visual distress signals. Every vessel of sixteen feet or more,
regardless of the distance of the vessel from shore, shall carry, to be
displayed and used whenever such vessel is in need of assistance, the
number and type of visual distress signals that are required by the
United States coast guard for operation on waters under federal
jurisdiction. Such devices shall be in serviceable condition and readily
accessible on board the vessel and the service life, if marked upon the
device, shall not have expired. The provisions of this subdivision shall
not apply to open sailboats under twenty-six feet in length that are not
equipped with mechanical power or vessels participating in an organized
marine event for which a permit has been granted by the commissioner
pursuant to section thirty-four of this chapter, or by the United States
coast guard. All vessels shall carry visual distress signals suitable
for night use between sunset and sunrise. At all times the provisions of
this subdivision shall not apply to vessels engaged in commerce and
having a valid marine document issued by the United States or a foreign
government.
8. Ventilation. All mechanically propelled vessels, the construction
or decking over of which is commenced after April twenty-fifth nineteen
hundred forty, and which uses fuel having a flash point of one hundred
ten degrees fahrenheit or less shall have at least two ventilators
fitted with cowls or their equivalent for the purpose of properly and
efficiently ventilating the bilges of every engine and fuel tank
compartment in order to remove any inflammable or explosive gases. Such
mechanically propelled vessels so constructed as to have the greater
portion of the bilges under the engine and fuel tanks open and exposed
to the natural atmosphere at all times need not be required to be fitted
with such ventilators.
9. Motor boats of greater than thirty-nine feet in length shall carry
a bell.
10. Any violation of the provisions of this section, or of a rule or
regulation adopted pursuant to this section, shall constitute a
violation punishable by a fine of not less than twenty-five nor more
than one hundred dollars.
11. The provisions of this section shall not apply to vessels
competing in duly authorized regattas and trials preceding such
regattas.
12. Any person or business which, in the regular course of business,
sells, offers for sale, leases or offers for lease new or used vessels
or outboard motors to the general public shall, upon the sale or lease
of any vessel or outboard motor, provide the purchaser with a list of
required equipment as set forth in this section and any rule or
regulation promulgated pursuant to this section.
13. The operator of a vessel under twenty-six feet in length equipped
with an engine cut-off switch shall use the engine cut-off switch when
the vessel is operating on plane or above displacement speed. The use of
an engine cut-off switch shall not be required when the operator is in a
fully enclosed cabin.
Manufacture and sale of outboard motors. No outboard motor
manufactured after January first, nineteen hundred eighty shall be sold
or offered for commercial sale by a dealer in this state unless such
motor shall have permanently engraved thereon by the manufacturer an
identifying serial number. Such serial mark shall be of a permanent
nature so as to prevent or discourage the removal, defacing, alteration
or destruction thereof. Anyone violating the provisions of this section
shall be guilty of a violation punishable by a fine of not less than one
hundred nor more than two hundred fifty dollars.
Sale and use of tributyltin paint. 1. No person shall sell or
offer to sell quick release tributyltin antifoulant bottom paints after
January first, nineteen hundred eighty-eight. For purposes of this
section, "quick release" shall mean a release rate of greater than five
micrograms of tributyltin per square centimeter per day.
2. No person shall apply a quick release tributyltin antifoulant
bottom paint to any vessel expected to be used in the waters of the
state including the marine and coastal district, as defined in section
13-0103 of the environmental conservation law, after January first,
nineteen hundred eighty-eight, nor shall any person apply an antifoulant
bottom paint having a release rate of greater than one microgram or less
than five micrograms of tributyltin per square centimeter per day to any
non-aluminum part of any vessel less than twenty-five meters in length
which is expected to be used in the waters of the state including the
marine and coastal district after January first, nineteen hundred
eighty-eight.
3. After January first, nineteen hundred eighty-eight, paint
containers holding antifoulant bottom paint having a release rate of
more than one microgram or less than five micrograms of tributyltin per
square centimeter being sold or offered for retail sale shall not exceed
thirty-two fluid ounces of such paint and shall have affixed to the
container a label which states the application of such paint is
restricted under New York state law to aluminum parts only.
4. The department of environmental conservation shall, prior to
January first, nineteen hundred eighty-eight, develop a list of those
quick release antifoulant bottom paints which have been banned from use
in this state under the provisions of this section as well as a list of
those tributyltin antifoulant bottom paints which have had their sale
and application restricted under the provisions of this section. The
department shall make such lists available to any interested party and
shall make a reasonable effort to transmit such lists to known
manufacturers and those places of sale of such paints within the state
and shall until December thirty-first, nineteen hundred eighty-eight
provide such list to any applicant for a license or permit under article
eleven or thirteen of the environmental conservation law.
5. Any violation of this section shall be a violation punishable by a
fine of not less than one hundred nor more than two hundred fifty
dollars.
Pilot rules. The following rules shall be observed on all
mechanically propelled vessels on the navigable waters of the state and
all tidewaters bordering on or lying within the boundaries of Nassau and
Suffolk counties: 1. Signals. The signals for passing, by the blowing
of the whistle, shall at all times be given by the master as defined in
this act.
(a) One distinct blast of the whistle shall mean: "I direct my course
to starboard"; except when two vessels are approaching each other at
right angles or obliquely, when it shall signify the intention of the
vessel which is to starboard of the other to hold course and speed.
(b) Two distinct blasts of the whistle shall mean: "I direct my course
to port."
(c) Three distinct blasts of the whistle shall mean: "My engines are
going at full speed astern."
(d) Four distinct blasts of the whistle shall mean: "I am in distress
and need your assistance."
(e) Five or more distinct blasts of the whistle shall constitute the
"danger signal."
(f) It shall be forbidden to use what has become technically known
among pilots as "cross-signals"; that is answering one whistle with two,
or two whistles with one.
(g) When a vessel is under way in a fog, mist, falling snow, or heavy
rain storm, it shall be the duty of the master to cause a long blast of
the whistle to be sounded at intervals not exceeding one minute. When
towing other vessels the long blast of the whistle shall be followed by
two short blasts. Such vessel shall proceed at a moderate speed and with
caution, having careful regard to the existing circumstances and
conditions.
(h) The master of a vessel, when at anchor during a fog, mist, falling
snow or heavy rain storm, shall, at intervals of not more than one
minute, ring a bell rapidly or sound other warning signals for about
five seconds.
2. Positions. (a) When vessels are approaching each other "head and
head," that is, end on or nearly so, it shall be the duty of each to
pass on the port side of the other, and either vessel shall give, as a
signal of her intention, one distinct blast on her whistle, which the
other vessel shall answer promptly with one similar blast of her
whistle.
(b) When vessels are approaching each other and the courses of such
vessels are so far to the starboard of each other as not to be
considered to be meeting head on or nearly so, either vessel shall
immediately give two distinct blasts of her whistle, which the other
shall answer promptly with two similar blasts of her whistle, and they
shall pass on the starboard side of each other.
(c) When vessels are approaching each other at "right angles or
obliquely" so as to involve risk of collision, the vessel which has the
other on her own port side shall hold her course and speed, and shall so
signify with one distinct blast of her whistle; and the vessel which has
the other on her own starboard side shall keep out of the way of the
other by directing her course to starboard so as to cross the stern of
the other vessel, or, if necessary to do so, shall slacken her speed, or
stop or reverse.
(d) When vessels are running in the same direction and the vessel
which is astern shall desire to pass on the starboard side of the vessel
ahead, she shall give one distinct blast of her whistle as the signal of
such desire, and if the vessel ahead answers with one similar blast of
her whistle, she shall pass to the starboard; or if the vessel astern
shall desire to pass on the port side of the vessel ahead, she shall
give two distinct blasts of her whistle as a signal of such desire, and,
if the vessel ahead answers with two similar blasts of the whistle, she
shall pass to the port; but if the vessel ahead does not think it safe
for the vessel astern to pass at that point, she shall immediately
signify the same by giving five or more rapid blasts of her whistle (the
danger signal), and under no circumstances shall the vessel astern
attempt to pass the vessel ahead until such time as they have reached a
point where it can be safely done, when said vessel ahead shall signify
her willingness by blowing the proper signal, which shall be answered by
the vessel astern. Neither vessel shall in any case attempt to cross the
bow or to crowd upon the course of the other vessel.
(e) If when vessels are approaching each other head and head, that is,
end on or nearly so, (as per subdivision (a) and (b)) or crossing each
other's courses, (as per subdivision (c)), or desire to pass each other
(as per subdivision (d)), either vessel fails to understand the course
or intention of the other, from any cause, the vessel so in doubt shall
immediately signify the same by giving five or more rapid blasts of her
whistle, (the danger signal), and both vessels shall immediately slow
their speed, or stop or reverse, as required to avoid collision, until
proper signals have been given, answered and understood, or until the
vessels have passed each other.
(f) When a mechanically propelled vessel shall meet a sailing vessel
proceeding in such direction as to involve risk of collision, the
sailing vessel shall have the right of way. It shall be incumbent on the
master of the sailing vessel to keep a vigilant lookout and change her
course, if necessary, to avoid any danger.
(g) In narrow channels, every vessel shall, when it is safe and
practicable, keep to that side of the fairway or mid-channel which lies
on the starboard side of such vessel.
3. Aid in distress. It shall be the duty of every master or pilot of
any vessel to render such assistance as he can possibly give to any
other vessel coming under his observation and being in distress on
account of accident, collision or otherwise.
4. Construing rules. In obeying and construing these rules, due regard
shall be had to all dangers of navigation and collision, and to any
special circumstances which may render a departure from the above rules
necessary in order to avoid immediate danger.
5. Application. The rules of this section shall apply to all vessels,
public and pleasure, propelled by machinery on the navigable waters of
the state and all tidewaters bordering on or lying within the boundaries
of Nassau and Suffolk counties.
6. Commissioner may modify. The commissioner is hereby authorized to
modify, change or expand the pilot rules as set forth in this section if
necessary to make them comply or be uniform with the provisions of the
federal navigation law, or of the navigation rules and regulations made
by the United States coast guard.
7. A violation of any provision of this section shall constitute a
violation punishable as set forth in section seventy-three-c of this
article.
Searchlights; unlawful to flash. Any licensed master, pilot,
joint pilot and engineer or operator, who shall flash or cause to be
flashed, the rays of a searchlight into the pilot house or into the eyes
of the master, pilot, or operator of an approaching vessel shall be
liable to have his license revoked. Any person committing such act
shall be guilty of a misdemeanor punishable as set forth in section
seventy-three-b of this article. Searchlights shall not be known as
navigating lights.
Tow-chains. Any person, for a fee, who operates a boat or
vessel, and who pilots, offers to pilot, tows or offers to tow any other
boat or vessel, must remove completely from the water any rope or chain
or other tool or device used to connect the boats or vessels for the
purposes of towing, while such rope or chain or other tool or device is
not being used to tow another boat or vessel. Violation of this section
is a violation, punishable by a fine of not less than two hundred fifty
dollars and not more than one thousand dollars.
Lights to be displayed. 1. Vessels classified. For the
application of this section vessels shall be divided into classes as
follows:
Class A. Less than sixteen feet in length.
Class 1. Sixteen feet or over and less than twenty-six feet in length.
Class 2. Twenty-six feet or over and less than forty feet in length.
Class 3. Forty feet or over and not more than sixty-five feet in
length.
Class 4. Over sixty-five feet in length.
Class 5. Rowboats, canoes and kayaks.
2. Every vessel in all weathers from sunset to sunrise shall carry and
exhibit and, if carried, shall also exhibit from sunrise to sunset in
restricted visibility, and may exhibit in all other circumstances when
it is deemed necessary, the following lights when under way, and during
such times no other lights which may be mistaken for those prescribed
shall be exhibited:
(a) Every vessel of classes A and one shall carry the following
lights:
First. A bright white light aft to show all around the horizon.
Second. A combined lantern in the fore part of the vessel and lower
than the white light aft, showing green to starboard and red to port, so
fixed as to throw the light from right ahead to two points abaft the
beam on their respective sides.
(b) Every vessel of classes two and three shall carry the following
lights:
First. A bright white light in the fore part of the vessel as near the
stem as practicable, so constructed as to show an unbroken light over an
arc of the horizon of twenty points of the compass, so fixed as to throw
the light ten points on each side of the vessel; namely, from right
ahead to two points abaft the beam on either side.
Second. A bright white light aft to show all around the horizon and
higher than the white light forward.
Third. On the starboard side a green light so constructed as to show
an unbroken light over an arc of the horizon of ten points of the
compass, so fixed as to throw the light from right ahead to two points
abaft the beam on the starboard side. On the port side a red light so
constructed as to show an unbroken light over an arc of the horizon of
ten points of the compass, so fixed as to throw the light from right
ahead to two points abaft the beam on the port side. The said side
lights shall be fitted with inboard screens of sufficient height so set
as to prevent these lights from being seen across the bow.
(c) Every vessel of class four shall carry the following lights:
First. On or in front of the foremast, or, if a vessel without a
foremast, then in the fore part of the vessel, a bright white light so
constructed as to show an unbroken light over an arc of the horizon of
twenty points of the compass, so fixed as to throw light ten points on
each side of the vessel, namely from right ahead to two points abaft the
beam on either side, and of such character as to be visible at a
distance of at least five miles.
Second. An additional after white light carried at an elevation at
least fifteen feet above the light at the head of the vessel and to show
all around the horizon.
Third. On the starboard side a green light so constructed as to show
an unbroken light over an arc of the horizon of ten points of the
compass, so fixed as to throw the light from right ahead to two points
abaft the beam on the starboard side. On the port side a red light so
constructed as to show an unbroken light over an arc of the horizon of
ten points of the compass, so fixed as to throw the light from right
ahead to two points abaft the beam on the port side. The said side
lights shall be fitted with inboard screens of sufficient height so set
as to prevent these lights from being seen across the bow.
(d) Rowboats, canoes and kayaks, whether under oars or sail, shall
have ready at hand a lantern showing a white light which shall be
temporarily exhibited in sufficient time to prevent collision.
(e) Vessels of classes A and one when propelled by sail alone shall
carry the combined lantern, but not the white light aft, prescribed by
this section. Vessels of classes two and three, when so propelled, shall
carry the colored side lights, suitably screened, but not the white
lights, prescribed by this section. Vessels of all classes, when so
propelled, shall carry, ready at hand, a lantern or flashlight showing a
white light which shall be exhibited in sufficient time to avert
collision.
(f) When propelled by sail and machinery any vessel shall carry the
lights required by this section for a vessel propelled by machinery
only.
(g) Any vessel may carry and exhibit the lights required by the
federal regulations for preventing collisions at sea, nineteen hundred
forty-eight, act of October eleventh, nineteen hundred fifty-one, as
amended, in lieu of the lights required by this section.
(h) A mechanically propelled vessel when towing another vessel shall,
in addition to her side lights, carry two bright white lights in a
vertical line one over the other, not less than three feet apart.
(i) A vessel under one hundred fifty feet in length when at anchor
shall carry forward, where it can best be seen, but at a height not
exceeding twenty feet above the hull, a white light in a lantern so
constructed as to show a clear, uniform, and unbroken light visible all
around the horizon at a distance of at least one mile: provided that the
commissioner may, after investigation, by rule, regulation, or order,
designate such areas as he may deem proper as "special anchorage areas";
such special anchorage areas may from time to time be changed, or
abolished, if after investigation the commissioner shall deem such
change or abolishment in the interest of navigation: provided further
that vessels not more than sixty-five feet in length when at anchor in
any such special anchorage area shall not be required to carry or
exhibit the white light required by this subdivision. A vessel of one
hundred fifty feet or upward in length, when at anchor, shall carry in
the forward part of the vessel, at a height of not less than twenty feet
and not exceeding forty feet above the hull, one such light, and at or
near the stern of the vessel, and at such a height that it shall be not
less than fifteen feet lower than the forward light, another such light.
(j) Every white light prescribed by this section shall be of such
character as to be visible at a distance of at least two miles except as
otherwise provided. Every colored light prescribed by this section shall
be of such character as to be visible at a distance of at least one mile
except as otherwise provided. The word "visible" in this section when
applied to lights, shall mean visible on a dark night with clear
atmosphere.
(k) A revolving blue light may only be carried or exhibited on
enforcement vessels owned or operated by the state of New York or a
political subdivision thereof.
(l) For the purposes of this section, the term "restricted visibility"
shall mean any condition in which visibility is restricted by fog, mist,
falling snow, heavy rainstorms, sandstorms, or any other similar causes;
3. Should the federal government adopt vessel light requirements
different from those contained in this section, the commissioner shall
be authorized to adopt rules and regulations superseding the vessel
light requirements of this section to achieve consistency with federal
standards, and shall submit such proposed rules and regulations to the
secretary of state in accordance with the state administrative procedure
act within thirty days of the adoption of federal equipment requirements
or submit a statement as to why such conforming changes are not being
proposed.
4. A violation of any provision of this section, or of a rule or
regulation adopted pursuant to subdivision three of this section, shall
constitute a violation punishable by a fine of not less than twenty-five
nor more than one hundred dollars.
Use of digital billboards. 1. All vessels shall be prohibited
from operating, anchoring or mooring in the navigable waters of the
state while operating a digital billboard or other type of billboard
that uses flashing, intermittent or moving lights.
2. As used in this section, the term "digital billboard" shall mean a
one or multi-sided outdoor advertising sign that displays digital images
using light-emitting diode technology or any such similar technology,
unless exclusively used to identify the vessel.
3. This section shall not be construed to limit any authority
delegated to a city, village or town pursuant to section forty-six-a of
this part. A city, village or town may, by local law, expressly
restrict or prohibit the use of outdoor advertising signage on vessels
within one thousand five hundred feet of its shore or expressly
authorize vessels to operate a digital billboard or other type of
billboard that uses flashing, intermittent or moving lights within one
thousand five hundred feet of its shore.
4. A violation of the provisions of this section shall be subject to a
civil penalty of one thousand dollars for the first violation, and five
thousand dollars for all subsequent violations.
Noise levels on pleasure vessels. 1. The provisions of this
section shall apply to the navigable waters of the state including all
tidewaters bordering on and lying within the boundaries of Nassau and
Suffolk counties.
2. (a) No person shall operate or give permission for the operation of
any pleasure vessel in or upon the waters of this state in such a manner
as to exceed a noise level of 90dB(A) when subjected to a stationary
sound level test as prescribed by SAE J2005.
(b) No person shall operate a pleasure vessel on the waters of this
state in such a manner as to exceed a noise level of 75dB(A) measured as
specified in SAE J1970. Provided, that such measurement shall not
preclude a stationary sound level test as prescribed by SAE J2005.
3. Sale or manufacture. No person shall manufacture or offer for sale
any pleasure vessel or engine for use in a pleasure vessel for use on
the waters of this state if such vessel or engine, at the time of
manufacture or sale, cannot be operated in such a manner so as to comply
with the sound level requirements provided in this section.
4. No person shall operate or give permission for the operation of any
pleasure vessel in or upon the waters of this state that is equipped
with an altered muffler or a muffler cutout, bypass or otherwise reduce
or eliminate the effectiveness of any muffler or muffler system
installed in accordance with this section.
5. No person shall remove, alter or otherwise modify in any way a
muffler or muffler system in a manner which will prevent it from being
operated in accordance with this section.
6. Exceptions. The provisions of this section shall not apply to
pleasure vessels designed, manufactured and sold for the sole purpose of
competing in racing events and for no other purpose. Any such exemption
or exception shall be so documented in any and every sale agreement and
shall be formally acknowledged by signature on the part of both the
buyer and the seller and copies of said agreement shall be maintained by
both parties. A copy shall be kept on board whenever the pleasure vessel
is operated. Any pleasure vessel sold under this exemption may only be
operated on the waters of this state in accordance with this section.
The provisions of this section shall also not apply to:
(a) Pleasure vessels which are competing in or participating for a
definite race over a given course held under the auspices of any bona
fide club or racing association between the hours of nine o'clock in the
morning and sunset, which has been approved pursuant to the provisions
of section thirty-four of this chapter, and all provisions of such
section have been complied with or pursuant to authorization by the
commandant of the United States Coast Guard.
(b) An authorized agent of the federal, state or municipal government
when operating a pleasure vessel necessary to carry out his or her
official duty of enforcement, search and rescue, firefighting or
research programs.
(c) A pleasure vessel being operated by a boat or marine engine
manufacturer for the purposes of testing and/or development.
(d) A pleasure vessel manufactured prior to nineteen hundred
sixty-five.
7. Any officer authorized to enforce the provisions of this section
who has reason to believe that a pleasure vessel is not in compliance
with the noise levels established in this section may direct the
operator of such pleasure vessel to submit the pleasure vessel to an
on-site test to measure noise level, with the officer on board if such
officer chooses, and the operator shall comply with such request. If
such pleasure vessel exceeds the decibel levels established in this
section, the officer may direct the operator to take immediate and
reasonable measures to correct the violation, including returning the
pleasure vessel to a mooring and keeping the pleasure vessel at such
mooring until the violation is corrected or ceases.
8. Any officer who conducts pleasure vessel sound level tests as
provided in this section shall be qualified in pleasure vessel noise
testing by the department of parks, recreation and historic
preservation. Such qualifications shall include but may not be limited
to the selection of the measurement site, and the calibration and use of
noise testing equipment.
9. Penalties. (a) Any person who fails to comply with the provisions
of this section shall be guilty of a violation punishable by a fine not
to exceed fifty dollars for the first offense and not exceeding two
hundred fifty dollars for a second or subsequent offense. However, the
court shall waive any fine for which a person who violates the
provisions of this section would be liable if such person supplies the
court with proof within thirty days of the issuance of the summons that
he purchased his pleasure vessel prior to the effective date of this
section, that the pleasure vessel's muffler was not altered or made
inoperable so as to result in a violation of the provisions of this
section, and that the pleasure vessel has been repaired, altered or
modified so as to be in compliance with the provisions of this section.
Provided, however, that such waiver of fine shall not apply to a second
or subsequent conviction under this section.
(b) Any person who alters or makes inoperable an effective muffler
system so that such system is no longer in compliance with this section
shall be guilty of a violation punishable by a fine of not less than
fifty dollars nor more than two hundred fifty dollars.
(c) All fines and forfeitures collected pursuant to the provisions of
this section by any court, judge, magistrate or other officer referred
to in subdivision one of section thirty-nine of the judiciary law,
establishing a unified court budget, shall be paid to the state
commissioner of taxation and finance, within the first ten days of the
month following collection to be deposited in a fund known as the
boating noise level enforcement fund established pursuant to section
ninety-one-b of the state finance law. The office of parks, recreation
and historic preservation shall distribute the fines to local law
enforcement officials according to the provisions of section
seventy-nine-b of this chapter for the purpose of enforcing the
provisions of this section.
10. All fines and forfeitures collected by any other court, judge or
magistrate or other officer shall be paid to the state comptroller
within the first ten days of the month following collection to be
deposited in a fund known as the boating noise level enforcement fund
established pursuant to section ninety-one-b of the state finance law.
The office of parks, recreation and historic preservation shall
distribute the fines to local law enforcement officials according to the
provisions of section seventy-nine-b of this chapter for the purpose of
enforcing the provisions of this section.
Reckless operation of a vessel; speed. 1. (a) Every master or
operator of a vessel shall at all times navigate the same in a careful
and prudent manner in such a way as not to unreasonably interfere with
the free and proper use of the navigable waters of the state and all
tidewaters bordering on or lying within the boundaries of Nassau and
Suffolk counties or unreasonably endanger any vessel or person. Reckless
operation is prohibited. Any person operating a vessel in violation of
this subdivision shall be guilty of a misdemeanor punishable as set
forth in section seventy-three-b of this article.
(b) No person shall operate a vessel at a speed greater than is
reasonable and prudent under the conditions and having regard to the
actual and potential hazards then existing.
1-a. No vessel other than the tending vessel shall be operated within
one hundred feet of a red flag with a diagonal white bar which, when
displayed on the water or from a boat, indicates underwater diving, or a
designated course for racing shells but no such flag shall be placed so
as to deny access or use of any boathouse, wharf, harbor, bay, channel
or navigable waterway.
2. Except as provided in section forty-five-cc of this part, no vessel
shall be operated within one hundred feet of the shore, a dock, pier,
raft, float or an anchored or moored vessel at a speed exceeding five
miles per hour, unless such vessel is being operated near such shore,
dock, float, pier, raft, or anchored vessel for the purpose of enabling
a person engaged in water skiing to take off or land.
3. The provisions of this section shall not apply to a vessel while
actually competing in a regatta or boat race authorized under section
thirty-four of this chapter.
4. The provisions of subdivision two above shall not apply to
commercial vessels having a valid marine document issued by the United
States or a foreign government.
5. The violation of any of the provisions of this section other than
paragraph (a) of subdivision one of this section shall constitute a
violation punishable as set forth in section seventy-three-c of this
article.
7. (a) The court may suspend a person's privilege to operate a vessel
for a period of at least three but less than twelve months upon
conviction for reckless operation of a vessel pursuant to any applicable
provision of this article. In determining the length of such suspension,
the court may take into consideration the seriousness of the offense and
may impose a period of suspension whereby such suspension may be in
effect during a portion of the current or subsequent boating season.
(b) The court shall suspend a person's privilege to operate and may
suspend a vessel registration:
(1) for a period of at least six but less than twelve months where a
person is convicted of reckless operation of a vessel pursuant to any
applicable provision of this article after having been convicted of any
such offense within the preceding eighteen months. In determining the
length of such suspension or suspensions, the court may take into
consideration the seriousness of the offense and may impose a period of
suspension whereby such suspension may be in effect during a portion of
the current or subsequent boating season;
(2) for a period of at least six but less than twelve months upon a
third or subsequent conviction for any violation of any law, ordinance
or regulation limiting the speed of a vessel or any provision
constituted a misdemeanor by this article except for the commission of a
third or subsequent misdemeanor as set forth in subparagraph three of
this paragraph. In determining the length of such suspension or
suspensions, the court may take into consideration the seriousness of
the offense and may impose a period of suspension whereby such
suspension may be in effect during a portion of the current or
subsequent boating season;
(3) for a period of twelve months where a person is convicted of
reckless operation of a vessel pursuant to any applicable provision of
this article after having been twice convicted of any such offense
within the preceding eighteen months.
(c) When a person is convicted pursuant to this article the court may,
in any case before the court, and shall when the convicted person is
subject to a suspension pursuant to this subdivision, in addition to any
other penalties invoked under this article, require the convicted
person, as a condition of the sentence, to complete a boating safety
course of the state, U.S. Power Squadrons, U.S. Coast Guard Auxiliary,
or a powerboating course or courses offered by the United States sailing
association which are approved by the commissioner and show proof of
successful completion of such course to the court or its designee.
Beaching a disabled water craft. Except in an emergency, it
shall not be lawful to intentionally beach or abandon any vessel, ship,
boat or other water craft on underwater lands of navigable waters of the
state surrounding Richmond county, without the permission of the owners
or lessees of the uplands abutting such underwater lands. Any violation
of this section shall be a misdemeanor punishable as set forth in
section seventy-three-b of this article.
Special provisions relating to reckless operation and speed
on Canandaigua lake; Keuka lake. 1. Notwithstanding any other provisions
of this chapter or any inconsistent local laws (a) every pleasure vessel
operated on Canandaigua lake, which is bordered by Ontario and Yates
counties, shall be operated in a careful and prudent manner, in such a
way as not to unreasonably interfere with or endanger any other vessel
or person; a violation of this paragraph shall be a misdemeanor
punishable as set forth in section seventy-three-b of this article; and
(b) no vessel shall be operated on such lake at a speed exceeding
forty-five miles per hour nor shall any pleasure vessel be operated at a
speed exceeding twenty-five miles per hour between one-half hour after
sunset and one-half hour before sunrise; a violation of this paragraph
shall be a violation punishable as set forth in section seventy-three-c
of this article.
1-a. Notwithstanding any other provisions of this chapter or any
inconsistent local laws (a) every vessel operated on Keuka Lake, which
is bordered by Steuben and Yates counties, shall be operated in a
careful and prudent manner, in such a way as not to unreasonably
interfere with or endanger any other vessel or person; a violation of
this paragraph shall be a misdemeanor punishable as set forth in section
seventy-three-b of this article; and (b) no vessel shall be operated on
such lake at a speed exceeding forty-five miles per hour nor shall any
vessel be operated at a speed exceeding twenty-five miles per hour
between one-half hour after sunset and one-half hour before sunrise; a
violation of this paragraph shall be a violation punishable as set forth
in section seventy-three-c of this article.
2. No vessel shall be operated within two hundred feet of the shore, a
dock, pier, raft or float or an anchored or moored vessel at a speed
exceeding five miles per hour, unless such vessel is being operated near
such shore, dock, float, pier, raft or anchored vessel for the purpose
of enabling a person engaged in water skiing to take off or land. A
violation of this subdivision shall be a violation punishable as set
forth in section seventy-three-c of this article.
3. The provisions of this section shall not apply to any pleasure
vessel competing in or practicing for a regatta or boat race over a
specified course held by a bona fide club or racing association between
nine o'clock in the morning and sunset, provided that due written notice
of the date of the race has been given to the appropriate law
enforcement agency at least fifteen days prior to such race, pursuant to
the provisions of section thirty-four of this chapter, and all
provisions of this section have been complied with.
4. Nothing in this section shall be construed as prohibiting any city,
town or village from continuing, adopting or enacting any other local
laws relating to persons operating a pleasure vessel within its limits,
but no such municipality shall have the power to make less restrictive
any of such provisions.
Special provisions relating to speed on Irondequoit bay. 1.
No vessel shall be operated on Irondequoit bay, which is located within
Monroe county, at a speed exceeding twenty-five miles per hour unless
such vessel is being operated for the purpose of enabling a person
engaged in water skiing or other water sport to be towed, in which case
no such vessel shall be operated at a speed exceeding thirty-five miles
per hour.
2. No vessel shall be operated in the channel between Irondequoit Bay
and Lake Ontario or within three hundred feet of the shore, the channel,
a dock, pier, raft or float or an anchored or moored vessel in a manner
or at a speed that causes a wake that unreasonably interferes with or
endangers such dock, pier, raft or float or an anchored or moored vessel
but in no event at a speed exceeding five miles per hour, unless for the
purpose of enabling a person engaged in water skiing to take off or
land.
3. The provisions of this section shall not apply to any vessel
competing in or practicing for a regatta or boat race over a specified
course held by a bona fide club or racing association, provided that due
written notice of the date of the race has been given to the appropriate
law enforcement agency at least fifteen days prior to such race,
pursuant to the provisions of section thirty-four of this chapter, and
all provisions of this section have been complied with.
4. Any person who operates a vessel in violation of any of the
provisions of this section shall be guilty of a violation punishable as
set forth in section seventy-three-c of this article.
5. Nothing in this section shall be construed as prohibiting any town
or county from continuing, adopting or enacting any other local laws,
resolutions or ordinances related to persons operating a vessel within
its limits, but no such municipality shall have the power to make less
restrictive any of such provisions.
* § 45-aaaa. Special provisions relating to reckless operation and
speed on Greenwood Lake. 1. Notwithstanding any other provisions of this
chapter or any inconsistent local laws (a) every pleasure vessel
operated on Greenwood Lake within Orange county, shall be operated in a
careful and prudent manner, in such a way as not to unreasonably
interfere with or endanger any other vessel or person; a violation of
this paragraph shall be a misdemeanor punishable as set forth in section
seventy-three-b of this article; and (b) no vessel shall be operated on
such lake at a speed exceeding forty-five miles per hour nor shall any
pleasure vessel be operated at a speed exceeding fifteen miles per hour
between one-half hour after sunset and one-half hour before sunrise; a
violation of this paragraph shall be a violation punishable as set forth
in section seventy-three-c of this article.
2. No vessel shall be operated within two hundred feet of the shore, a
dock, pier, raft or float or an anchored or moored vessel at a speed
exceeding five miles per hour, unless such vessel is being operated near
such shore, dock, float, pier, raft or anchored vessel for the purpose
of enabling a person engaged in water skiing to take off or land. A
violation of this subdivision shall be a violation punishable as set
forth in section seventy-three-c of this article.
3. The provisions of this section shall not apply to any pleasure
vessel competing in or practicing for a regatta or boat race over a
specified course held by a bona fide club or racing association between
nine o'clock in the morning and sunset, provided that due written notice
of the date of the race has been given to the appropriate law
enforcement agency at least fifteen days prior to such race, pursuant to
the provisions of section thirty-four of this chapter, and all
provisions of this section have been complied with.
* NB There are 2 § 45-aaaa's
Special provisions relating to reckless operation and
speed on Lake Alice. 1. Notwithstanding any other provisions of this
chapter or any inconsistent local laws (a) every pleasure vessel
operated on Lake Alice within Orleans county, shall be operated in a
careful and prudent manner, in such a way as not to unreasonably
interfere with or endanger any other vessel or person; a violation of
this paragraph is a misdemeanor punishable as set forth in section
seventy-three-b of this article; and (b) no vessel shall be operated on
such lake at a speed exceeding thirty-five miles per hour; a violation
of this paragraph shall be a violation punishable as set forth in
section seventy-three-c of this article.
2. No vessel shall be operated within one hundred feet of the shore, a
dock, pier, raft or float or an anchored or moored vessel at a speed
exceeding five miles per hour, unless such vessel is being operated near
such shore, dock, float, pier, raft or anchored vessel for the purpose
of enabling a person engaged in water skiing to take off or land. A
violation of this subdivision shall be a violation punishable as set
forth in section seventy-three-c of this article.
3. The provisions of this section shall not apply to any pleasure
vessel competing in or practicing for a regatta or boat race over a
specified course held by a bona fide club or racing association between
nine o'clock in the morning and sunset, provided that due written notice
of the date of the race has been given to the appropriate law
enforcement agency at least fifteen days prior to such race, pursuant to
the provisions of section thirty-four of this chapter, and all
provisions of such section thirty-four have been complied with.
* § 45-aaaaaa. Special provisions relating to noise and speed on
Lamoka Lake and Waneta Lake. 1. Notwithstanding any other provisions of
this chapter or any inconsistent local laws, every pleasure vessel
operated on Lamoka Lake, located in Schuyler county, or Waneta Lake,
located in Schuyler and Steuben counties, shall be operated in a careful
and prudent manner, in such a way as not to unreasonably interfere with
or endanger any vessel or person, and no vessel shall be operated at a
speed exceeding forty-five miles per hour. No pleasure vessel operated
on Lamoka Lake or Waneta Lake shall be operated at a speed exceeding
twenty-five miles per hour between one-half hour after sunset and
one-half hour before sunrise.
2. No vessel shall be operated on Lamoka Lake or Waneta Lake within
two hundred feet of the shore, a dock, pier, raft or float or an
anchored or moored vessel in a manner or at such a speed that causes a
wake that unreasonably interferes with or endangers such dock, pier,
raft or float or an anchored or moored vessel but in no event at a speed
exceeding five miles per hour, unless for the purpose of enabling a
person engaged in water skiing to take off or land or such vessel is
required to run at full throttle through an established course to
measure the vessel's decibel level pursuant to the directions of a law
enforcement officer.
3. The provisions of this section shall not apply to any vessel
competing in or practicing for a regatta or boat race over a specified
course held by a bona fide club or racing association, provided that due
written notice of the date of the race has been given to the appropriate
law enforcement agencies at least fifteen days prior to such race,
pursuant to the provisions of section thirty-four of this chapter, and
all provisions of this section have been complied with. The provisions
of this section shall not apply to any Federal Aviation Agency licensed
aircraft.
4. Any person who fails to comply with any of the provisions of this
section shall be guilty of a violation punishable by a fine of not less
than twenty-five dollars nor more than one hundred dollars for the first
offense; by a fine of not less than fifty dollars nor more than two
hundred dollars for conviction of the second offense committed within a
period of twenty-four months; by a fine of not less than one hundred
dollars nor more than two hundred dollars for conviction of the third
offense or any subsequent offense committed within a period of
twenty-four months.
* NB There are 2 § 45-aaaaaa's
Regulation of beaches. Except when prohibited by reason of the
laws of the United States, the board of trustees of a village may adopt,
amend and enforce rules and regulations not inconsistent with law, with
respect to regulating the use of beaches in or adjacent to the village
and regulating swimming and bathing in open waters exposed to the
public, including the use of underwater diving devices for swimming and
fishing, within or bounding the village or such beaches to a distance of
fifteen hundred feet from the shore, including any waters within or
bordering a village in the county of Nassau or Suffolk, and requiring
the owners or operators of any bathing beaches, bath houses or other
places charging a fee to the public for the use of such facilities to
provide adequate safeguards for the protection of the public in waters
adjacent to such premises.
The provisions of this section shall be controlling notwithstanding
any contrary provisions of law.
Special provisions relating to reckless operation and speed on
Conesus lake. 1. Notwithstanding any other provisions of this chapter or
any inconsistent local laws (a) every pleasure vessel operated on
Conesus lake within the county of Livingston, shall be operated in a
careful and prudent manner, in such a way as not to unreasonably
interfere with or endanger any other vessel or person; a violation of
this paragraph shall be a misdemeanor punishable as set forth in section
seventy-three-b of this article; and (b) no vessel shall be operated on
such lake at a speed exceeding forty-five miles per hour nor shall any
pleasure vessel be operated at a speed exceeding twenty-five miles per
hour between one-half hour after sunset and one-half hour before
sunrise; a violation of this paragraph shall be a violation punishable
as set forth in section seventy-three-c of this article.
2. No vessel shall be operated within two hundred feet of the shore, a
dock, pier, raft or float or an anchored or moored vessel at a speed
exceeding five miles per hour, unless such vessel is being operated near
such shore, dock, float, pier, raft or anchored vessel for the purpose
of enabling a person engaged in water skiing to take off or land. A
violation of this subdivision shall be a violation punishable as set
forth in section seventy-three-c of this article.
3. The provisions of this section shall not apply to any pleasure
vessel competing in or practicing for a regatta or boat race over a
specified course held by a bona fide club or racing association between
nine o'clock in the morning and sunset, provided that due written notice
of the date of the race has been given to the appropriate law
enforcement agency at least fifteen days prior to such race, pursuant to
the provisions of section thirty-four of this chapter, and all
provisions of such section have been complied with.
Reckless operation and speed on the canal system. 1.
Notwithstanding any other provisions of this chapter or any inconsistent
local laws, every vessel operated on the canal system, as defined in
subdivision one of section two of the canal law, shall be operated in a
careful and prudent manner in such a way as not to unreasonably
interfere with or endanger any other vessel or person. A violation of
this subdivision or any applicable rules and regulations shall be a
misdemeanor punishable as set forth in section seventy-three-b of this
article.
2. Notwithstanding any other provisions of this chapter or any
inconsistent local laws, no vessel shall be operated on such canal
system within one hundred feet of the shore, a dock, pier, raft, float
or an anchored or moored vessel at a speed exceeding five miles per
hour, unless such vessel is being operated near such shore, dock, float,
pier, raft, or anchored vessel for the purpose of enabling a person
engaged in water skiing to take off or land, and except in those areas
where the canal corporation has established a different speed by rule
and regulation pursuant to the canal law. A violation of this
subdivision or any applicable rules and regulations shall be a violation
punishable as set forth in section seventy-three-c of this article.
Special provisions relating to speed at Crooke's Point in
Great Kills Harbor. 1. No vessel shall be operated in Great Kills Harbor
extending beyond the Crooke's Point Jetty to the lighted buoy at the
Harbor's entrance, within one hundred feet of the shore, a dock, pier,
raft or float or an anchored or moored vessel in a manner or at a speed
that causes a wake that unreasonably interferes with or endangers such
dock, pier, raft or float or an anchored or moored vessel but in no
event at a speed exceeding five miles per hour, unless for the purpose
of enabling a person engaged in water skiing to take off or land.
2. The provisions of this section shall not apply to any vessel
competing in or practicing for a regatta or boat race over a specified
course held by a bona fide club or racing association, provided that due
written notice of the date of the race has been given to the appropriate
law enforcement agency at least fifteen days prior to such race,
pursuant to the provisions of section thirty-four of this chapter, and
all provisions of this section have been complied with.
3. Any person who operates a vessel in violation of any of the
provisions of this section shall be guilty of a violation punishable as
set forth in section seventy-three-c of this article.
4. Nothing in this section shall be construed as prohibiting any town
or county from continuing, adopting or enacting any other local laws,
resolutions or ordinances related to persons operating a vessel within
its limits, but no such municipality shall have the power to make less
restrictive any of such provisions.
Vessel regulation zone. 1. (a) The board of supervisors or other
legislative governing body of a county, or, should no action on the
matter be taken by such board or body, the governing body of a city or
incorporated village, by a three-quarters vote of its members, may
establish a vessel regulation zone and within the limitations prescribed
by this chapter, adopt regulations for the use of a lake or part of a
lake or other body of water within the county, or in case of a city or
incorporated village of the part of said waters adjacent thereto, if it
shall deem that such establishment of a zone will promote the safety of
the people and be for the best interests of the county, city or
incorporated village.
(b) The governing body of a city or incorporated village, by a
three-quarters vote of its members, may establish a personal watercraft
and specialty prop-craft regulation zone and within the limitations
prescribed by this chapter, adopt regulations for the use of a lake or
part of a lake or other body of water adjacent to such city or
incorporated village, if it shall deem that such establishment of a zone
will promote the safety of the people and be for the best interests of
the city or incorporated village. With respect to personal watercraft
and specialty prop-craft, such regulations may include a prohibition of
their use provided such prohibition does not prevent access to federally
maintained and designated navigation channels.
2. Before any such zone shall be established, a public hearing shall
be held before the members of the board of supervisors or other
legislative governing body of the county or the governing body of the
city or incorporated village, or a committee designated for that
purpose, upon not less than thirty days notice of such hearing published
in at least two newspapers having general circulation in the territory
affected. Such notice will specify the time and place of hearing, the
limits of the proposed zone which shall not exceed fifteen hundred feet
from the shore line at low water mark of the body of water where the
zone is to be established and the regulations proposed to be adopted.
Following such hearing the committee shall report to the board of
supervisors, or other legislative governing body of the county or the
governing body of the city or incorporated village, and such board or
governing body may adopt the limits of the proposed zone and its
regulations. It shall be the duty of the clerk of the board of
supervisors, or other legislative governing body of the county or the
clerk of the governing body of the city or incorporated village to
promptly file a certified copy of such established vessel regulation
zone and regulations adopted in the office of the clerk of the county
wherein such zone is established.
3. When such regulation zones are established there shall be
constructed by the county, city or incorporated village establishing
same, on the shore near each boundary, a signboard facing the water and
bearing thereon in large letters "VESSEL REGULATION ZONE" with the rate
of speed limited in that area and/or such other restrictions as may be
adopted. Such signboard shall be conspicuously placed. Any expense
incurred in the formation or operation of the zone or district shall be
a county, city or incorporated village charge and shall be paid for in
the same manner as other charges against such political units.
4. Any person violating any of the regulations adopted pursuant to the
provisions of this section shall be guilty of a misdemeanor punishable
as set forth in section seventy-three-b of this article. The provisions
of this section shall not apply to any vessel while actually competing
in a duly authorized regatta as provided in section thirty-four of this
chapter, and provided due written notice of the date of such race or
regatta has been filed with the clerk of the county wherein such vessel
regulation zone has been established.
5. It shall be the duty of all peace officers, acting pursuant to
their special duties, police officers and traveling navigation
inspectors, to enforce the provisions of this section.
Regulations of vessels. (1) The local legislative body of a
city or the board of trustees of a village may adopt, amend and enforce
local laws, rules and regulations not inconsistent with the laws of this
state or the United States, with respect to:
a. Regulating the speed and regulating and restricting the operation
of vessels while being operated or driven upon any waters within or
bounding the appropriate city or village, including any waters within or
bordering a village in the county of Nassau or Suffolk, to a distance of
fifteen hundred feet from the shore.
b. Restricting and regulating the anchoring or mooring of vessels in
any waters within or bounding the appropriate city or village to a
distance of fifteen hundred feet from the shore.
c. Restricting and regulating the anchoring or mooring of vessels in
such waters when used or occupied as living or sleeping quarters and;
providing time limits on duration of the stay of such vessels in such
waters and requiring inspection and registration of such vessels when so
used.
d. Restricting and regulating garbage removal from said vessels.
e. Designating public anchorage area or areas and regulating the use
thereof.
(2) The local legislative body of the village of Sodus Point and the
town of Huron in the county of Wayne, the villages of Croton-on-Hudson
and Mamaroneck and the town of Cortlandt in the county of Westchester,
the town of Stony Point in the county of Rockland, the town of Grand
Island in the county of Erie, the towns of Conesus, Geneseo, Groveland
and Livonia in the county of Livingston, the towns of Irondequoit,
Webster, and Penfield in the county of Monroe, the village of Greenwood
Lake and the town of Warwick in the county of Orange, the town of
Carlton in the county of Orleans, the village of Sackets Harbor in the
county of Jefferson, and the villages of Union Springs, Aurora and
Cayuga and the towns of Genoa and Ledyard in the county of Cayuga, the
town of Ithaca in the county of Tompkins, the city of Kingston and the
village of Saugerties in the county of Ulster and the town of Porter in
the county of Niagara, the village of North Haven in the county of
Suffolk, the towns of Fayette and Varick in the county of Seneca, the
village of Skaneateles and the town of Skaneateles in the county of
Onondaga, and the town of Springfield in the county of Otsego may adopt,
amend and enforce local laws, rules and regulations not inconsistent
with the laws of this state or the United States, with respect to the
restriction and regulation of the manner of construction and location of
boathouses, moorings and docks in any waters within or bounding the
respective municipality to a distance of fifteen hundred feet from the
shoreline.
(4) a. The local legislative body of the city of Canandaigua and the
towns of Canandaigua, Gorham, South Bristol, Canadice and Richmond in
the county of Ontario and the towns of Middlesex and Italy in the county
of Yates may adopt, amend and enforce local laws, rules and regulations
not inconsistent with the laws of the United States, with respect to the
restriction and regulation of the manner of construction and location of
boathouses, moorings and docks in any waters within or bounding the
aforementioned cities and towns to a distance of 1500 feet from the
shoreline.
b. No such local law, rule or regulation shall take effect in the town
of Canandaigua, Gorham, South Bristol, Middlesex or Italy or in the city
of Canandaigua with regard to Canandaigua Lake, or in the town of
Canadice or Richmond with regard to Honeoye Lake until all respective
lakeshore municipalities unanimously agree by resolution to a set of
uniform standards that include at a minimum the length and density of
docks, the number of boats or boat slips allowed per lineal foot of
lakeshore for various land uses, the number of moorings and boathouses
allowed for various land uses, and the allowable dimensions and
locations for docks, and provided further that no such local law shall
take effect until it shall have been submitted to and approved in
writing by the commissioner of parks, recreation and historic
preservation and provided further that no future amendments to the
uniform standards shall take effect until all respective lakeshore
municipalities unanimously agree by resolution to the revised set of
uniform standards and such revised standards have similarly been
submitted to and approved in writing by the commissioner.
(5) The local legislative body of any city, town or village which is a
participating community as defined in subdivision ten of section 44-0103
of the environmental conservation law may adopt, amend and enforce local
laws, rules and regulations not inconsistent with the laws of this state
or the United States or with the Hudson river valley greenway compact,
with respect to the restriction and regulation of the manner of
construction and location of boathouses, moorings and docks in any
waters within or bounding the respective municipality to a distance of
fifteen hundred feet from the shoreline. Nothing in this subdivision or
in article forty-four of the environmental conservation law or in the
Hudson river valley greenway compact produced pursuant to such article,
shall be deemed to affect, impair or supersede the provisions of any
charter, local law, rule or other local requirements and procedures
heretofore or hereafter adopted by such participating community,
including, but not limited to, any such provisions relating to the
zoning and use of land or any waters within or bounding such
participating community to a distance of fifteen hundred feet from the
shoreline.
(6) a. The local legislative bodies of the towns of Barrington,
Jerusalem, Milo, Pulteney, Urbana and Wayne and the villages of
Hammondsport and Penn Yan in the counties of Steuben and Yates may
adopt, amend and enforce local laws, rules and regulations not
inconsistent with the laws of the United States, with respect to the
restriction and regulation of the manner of construction and location of
boathouses, moorings and docks in any waters within or bounding the
aforementioned towns and villages to a distance of fifteen hundred feet
from the shoreline.
b. No such local law, rule or regulation shall take effect in the
towns of Barrington, Jerusalem, Milo, Pulteney, Urbana or Wayne and the
villages of Hammondsport and Penn Yan with regard to Keuka Lake, until
all respective lakeshore municipalities unanimously agree by resolution
to a set of uniform standards that include at a minimum the length and
density of docks, the number of boats or boat slips allowed per lineal
foot of lakeshore for various land uses, the number of moorings and
boathouses allowed for various land uses, and the allowable dimensions
and locations for docks, and provided further that no such local law
shall take effect until it shall have been submitted to and approved in
writing by the commissioner and provided further that no future
amendments to the uniform standards shall take effect until all
respective lakeshore municipalities unanimously agree by resolution to
the revised set of uniform standards and such revised standards have
similarly been submitted to and approved in writing by the commissioner.
The provisions of this section shall be controlling notwithstanding
any contrary provisions of law.
Special provisions relating to speed on lakes in Chautauqua
county. 1. The county legislature of the county of Chautauqua may adopt,
amend and enforce local laws, rules and regulations not inconsistent
with the laws of this state or the United States, with respect to
regulating and restricting the rate of speed of vessels while being
operated on any navigable waters, or part thereof, located within
Chautauqua county, including, but not limited to regulating or
restricting the operation of vessels within two hundred feet of the
shore, a dock, pier, raft or float or an anchored or moored vessel in a
manner or at a speed that does not cause a wake that unreasonably
interferes with or endangers such dock, pier, raft or float or an
anchored or moored vessel but in no event at a speed exceeding five
miles per hour, unless for the purpose of enabling a person engaged in
water skiing to take off or land, or regulating or restricting the speed
of vessels on such lake between one-half hour after sunset and one-half
hour before sunrise.
2. Local laws, rules and regulations adopted pursuant to the
provisions of this section shall not apply to any pleasure vessel
competing in or practicing for a regatta or boat race over a specified
course held by a bona fide club or racing association, provided that due
written notice of the date of the race has been given to the appropriate
law enforcement agency at least fifteen days prior to such race,
pursuant to the provisions of section thirty-four of this chapter, and
all provisions of such section have been complied with.
3. No local law, rule or regulation adopted pursuant to the provisions
of this section shall take effect until it shall have been submitted to
and approved in writing by the commissioner of parks, recreation and
historic preservation.
Nothing in this section shall be construed as prohibiting any city,
town or village from continuing, adopting or enacting any other local
laws relating to persons operating a vessel within its limits, but no
such municipality shall have the power to make less restrictive any of
such provisions than any local law, rule or regulation which may be
adopted pursuant to provisions of this section.
Special provisions relating to reckless operation and speed
on certain lakes in Hamilton county. 1. Notwithstanding any other
provisions of this chapter or any inconsistent local laws (a) every
pleasure vessel operated on Blue Mountain lake, Eagle lake, Indian lake,
and Utowana lake, shall be operated in a careful and prudent manner, in
such a way as not to unreasonably interfere with or endanger any vessel
or person; a violation of this paragraph shall be a misdemeanor
punishable as set forth in section seventy-three-b of this article; and
(b) no vessel shall be operated on such lakes at a speed exceeding
forty-five miles per hour nor shall any pleasure vessel be operated at a
speed exceeding twenty-five miles per hour between one-half hour after
sunset and one-half hour before sunrise; a violation of this paragraph
shall be a violation punishable as set forth in section seventy-three-c
of this article.
2. No vessel shall be operated on Blue Mountain lake, Eagle lake,
Indian lake and Utowana lake within two hundred feet of the shore, a
dock, pier, raft or float or an anchored or moored vessel in a manner or
at such a speed that causes a wake that unreasonably interferes with or
endangers such dock, pier, raft or float or an anchored or moored vessel
but in no event at a speed exceeding five miles per hour, unless for the
purpose of enabling a person engaged in water skiing to take off or
land. A violation of this subdivision is a violation punishable as set
forth in section seventy-three-c of this article.
3. The provisions of this section shall not apply to any vessel
competing in or practicing for a regatta or boat race over a specified
course held by a bona fide club or racing association, provided that due
written notice of the date of the race has been given to the appropriate
law enforcement agencies at least fifteen days prior to such race,
pursuant to the provisions of section thirty-four of this chapter, and
all provisions of such section have been complied with. The provisions
of this section shall not apply to any Federal Aviation Agency licensed
aircraft.
4. Nothing in this section shall be construed as prohibiting any town
or county from adopting or enacting any local laws, resolutions or
ordinances related to persons operating a vessel within its limits, but
no such municipality shall have the power to make less restrictive any
of such provisions.
Special provisions relating to speed on Cuba lake. 1.
Notwithstanding any other provisions of this chapter or any inconsistent
local laws, every pleasure vessel operated on Cuba lake, located in the
towns of Cuba, Allegany county and Ischua, Cattaraugus county, shall be
operated in a careful and prudent manner, in such a way as to not
unreasonably interfere with or endanger any vessel or person, and no
vessel shall be operated at a speed exceeding forty-five miles per hour.
No pleasure vessel operated on Cuba lake shall be operated at a speed
exceeding twenty-five miles per hour between one-half hour after sunset
and one-half hour before sunrise.
2. No person shall ride on water skis, surfboard, motorized jet ski or
motorized personal watercraft or similar device on the waters of Cuba
lake, without wearing a life preserver, life belt, or similar device;
provided, however, that the provisions of this subdivision shall not
apply to a paid performer engaged in a professional exhibition.
3. The provisions of this section shall not apply to any vessel
competing in or practicing for a regatta or boat race over a specified
course held by a bona fide club or racing association, provided that due
written notice of the date of the race has been given to the appropriate
law enforcement agencies at least fifteen days prior to such race,
pursuant to the provisions of section thirty-four of this chapter, and
all provisions of this section have been complied with. The provisions
of this section shall not apply to any Federal Aviation Agency licensed
aircraft.
4. Any person who fails to comply with any of the provisions of this
section shall be guilty of a violation punishable by a fine of not less
than twenty-five dollars nor more than one hundred dollars for the first
offense; by a fine of not less than fifty dollars nor more than two
hundred dollars for conviction of the second offense committed within a
period of twenty-four months; by a fine of not less than one hundred
dollars nor more than two hundred dollars for conviction of the third
offense or any subsequent offense committed within a period of
twenty-four months.
5. The Cuba lake district shall have all of the rights, duties and
obligations as provided for in section forty-six of this chapter as
afforded to the governing body of a city or incorporated village
relative to the creation of a vessel regulation zone.
Special provisions relating to speed on Saratoga lake. 1.
Notwithstanding any other provisions of this chapter or any inconsistent
local laws, every pleasure vessel operated on Saratoga lake, located in
the towns of Malta, Saratoga and Stillwater, and the city of Saratoga
Springs, Saratoga county, shall be operated in a careful and prudent
manner, in such a way as to not unreasonably interfere with or endanger
any vessel or person, and no vessel shall be operated at a speed
exceeding forty-five miles per hour. No pleasure vessel operated on
Saratoga lake shall be operated at a speed exceeding twenty-five miles
per hour between one-half hour after sunset and one-half hour before
sunrise.
2. In addition to the waters of Saratoga lake, the provisions of this
section shall apply to Fish creek from Saratoga lake to Safford's
bridge. Notwithstanding subdivision one of this section the five miles
per hour speed zone at the state route nine-P state boat launch, in
effect prior to the effective date of this section, shall remain in full
force and effect.
3. No vessel shall be operated on Saratoga lake within two hundred
feet of shore, a dock, pier, raft or float or an anchored or moored
vessel in a manner or at such a speed that causes a wake that
unreasonably interferes with or endangers such shoreline, dock, pier,
raft or float or anchored or moored vessel, but in no event at a speed
exceeding five miles per hour, unless for the purpose of enabling a
person engaged in water skiing to take off or land.
4. The provisions of this section shall not apply to any vessel
competing in or practicing for a regatta or boat race over a specified
course held by a bona fide club or racing association, provided that due
written notice of the date of the race has been given to the appropriate
law enforcement agencies at least fifteen days prior to such race,
pursuant to the provisions of section thirty-four of this chapter, and
all provisions of such section have been complied with. The provisions
of this section shall not apply to any federal aviation agency licensed
aircraft.
5. Any person who violates any provision of this section shall be
guilty of a violation punishable as provided in section seventy-three-c
of this article.
Leaving the scene of an accident without reporting. 1. (a)
Whenever any vessel, including, but not limited to, rowboats, canoes and
kayaks, meets with an accident involving damage to any vessel or to the
real property or to the personal property, not including animals, of
another due to an accident involving such vessel and the operator
thereof has knowledge of such accident, such operator shall, before
leaving the place where the damage occurred, stop and give his or her
name and address, the name and address of the owner thereof and the
identification number, if any, assigned to such vessel to the person
sustaining the damage. In the event the person sustaining the damage
cannot be located at the place where the damage occurred, then the
operator of such vessel shall report the same as soon as physically able
to the nearest police officer, police station, bay constable or judicial
officer.
(b) A violation of the provisions of paragraph (a) of this subdivision
shall constitute a violation punishable as set forth in section
seventy-three-c of this article.
2. (a) Every operator of a vessel, including, but not limited to,
rowboats, canoes and kayaks, who, knowing or having cause to know that
personal injury has been caused to another person, or another person has
disappeared under the water, due to an accident involving such vessel
shall, before leaving the place where the said incident involving
personal injury occurred, stop, give such operator's name and address,
the name and address of the owner of such vessel and the identification
number, if any, assigned to such vessel to the injured party, if
practical, and shall report said accident as soon as physically able to
the nearest police officer, police station, bay constable or judicial
officer.
(b) The first violation of the provisions of paragraph (a) of this
subdivision involving personal injury to another person resulting solely
from the failure of a vessel operator to provide the name and address of
the vessel owner and/or the identification number of the vessel shall
constitute a class B misdemeanor punishable by a fine of not less than
two hundred fifty nor more than five hundred dollars in addition to any
other penalties provided by law. Any subsequent such violation after a
conviction for such violation within the preceding five years shall
constitute a class A misdemeanor punishable by a fine of not less than
five hundred nor more than one thousand dollars in addition to any other
penalties provided by law. Any violation of the provisions of paragraph
(a) of this subdivision, other than the mere failure of a vessel
operator to provide the name and address of the vessel owner and/or the
identification number of the vessel, shall constitute a class A
misdemeanor, punishable by a fine of not less than five hundred nor more
than one thousand dollars in addition to any other penalties provided by
law. Any such violation committed by a person after such person has
previously been convicted of such a violation shall constitute a class E
felony, punishable by a fine of not less than one thousand nor more than
two thousand five hundred dollars in addition to any other penalties
provided by law. Any violation of the provisions of paragraph (a) of
this subdivision, other than the mere failure of a vessel operator to
provide the name and address of the vessel owner and/or the
identification number of the vessel where the personal injury involved
(i) results in serious physical injury, as defined in section 10.00 of
the penal law, or where a person has disappeared under the water as the
result of the incident shall constitute a class E felony or (ii) results
in death shall constitute a class D felony.
3. The provisions of this section shall not apply to commercial
vessels having a valid marine document issued by the United States or a
foreign government.
Accidents; police authorities, bay constables and coroners to
report. 1. Every police officer, bay constable or judicial officer
receiving information of an accident involving a vessel, including, but
not limited to, rowboats and canoes, in which any person is killed,
injured or disappears under the water shall immediately investigate the
facts, or cause the same to be investigated, make a written memorandum
of the information received, and such additional facts relating to the
accident as may come to his or her knowledge, and mail the same within
five days to the commissioner and keep a record thereof in his or her
office, provided, however, that the report of the accident is made to
the police officer, bay constable or judicial officer within five days
after such accident. Every coroner, or other official performing like
functions, shall likewise make a report to the commissioner with respect
to all deaths found to have been the result of vessel accidents.
2. Every police officer, bay constable or judicial officer receiving
information of an accident involving a vessel, including, but not
limited to, rowboats and canoes, in which damage in excess of one
thousand dollars to the property of any person is sustained shall make a
written memorandum of the information received, and such additional
facts relating to the accident as may come to his or her knowledge, and
mail the same within five days to the commissioner and keep a record
thereof in his or her office.
3. In accordance with any request duly made by an authorized official
or agency of the United States, any information compiled by or otherwise
available to the commissioner pursuant to this section shall be
transmitted to such official or agency of the United States.
Report to the commissioner required upon accident. Every
person operating a vessel, including, but not limited to, rowboats and
canoes, upon the navigable waters of the state, or on any other waters
within the boundaries of the state, which is in any manner involved in
an accident, in which any person is killed, injured or disappears under
the water, or in which damage to the property of any one person,
including himself or herself, in excess of one thousand dollars is
sustained shall, within five days after such accident, report the matter
in writing to the commissioner. If the owner is not involved in such
accident or is incapacitated, the owner shall, within five days after
learning of the facts of such accident, report the matter to the
commissioner together with such information as may have come to the
owner's knowledge relating to such accident. Every such operator of a
vessel, or surviving participant in any such accident, or the owner of
the vessel involved in any such accident, shall make such other and
additional reports as the commissioner may require. A violation of this
section shall constitute a violation punishable by a fine of not less
than twenty-five nor more than one hundred dollars. Nothing contained in
this section shall be deemed to supersede the provisions of section
forty-seven of this article.
Negligence in use or operation of vessel attributable to owner.
1. Every owner of a vessel used or operated upon the navigable waters of
the state or any tidewaters bordering on or lying within the boundaries
of Nassau and Suffolk counties, shall be liable and responsible for
death or injuries to person or property resulting from negligence in the
use or operation of such vessel, in the business of such owner, or
otherwise, by any person using or operating the same with the
permission, express or implied, of such owner.
The use or operation by a non-resident or non-residents of a vessel in
this state, or the use or operation in this state of a vessel in the
business of a non-resident, or the use or operation in this state of a
vessel owned by a non-resident if so used or operated with his
permission, express or implied, shall be deemed equivalent to an
appointment by such non-resident of the secretary of state to be his
true and lawful attorney upon whom may be served the summons in any
action against him, growing out of any accident or collision in which
such non-resident may be involved while using or operating such vessel
in this state or in which such vessel may be involved while being used
or operated in this state in the business of such non-resident or with
the permission, express or implied, of such non-resident owner; and such
use or operation shall be a signification of his agreement that any such
summons against him which is so served shall be of the same legal force
and validity as if served on him personally within the state and within
the territorial jurisdiction of the court from which the summons issues,
and that such appointment of the secretary of state shall be irrevocable
and binding upon his executor or administrator. Where such non-resident
has died prior to the commencement of an action brought pursuant to this
section, service of process shall be made on the executor or
administrator of such non-resident in the same manner and on the same
notice as is provided in the case of the non-resident himself. Where an
action has been duly commenced under the provisions of this section
against a non-resident who dies thereafter, the court must allow the
action to be continued against his executor or administrator upon motion
with such notice as the court may deem proper.
2. A summons in an action described in this section may issue in any
court in the state having jurisdiction of the subject matter and be
served as hereinafter provided. Service of such summons shall be made by
mailing a copy thereof to the secretary of state at his office in the
city of Albany, or by personally delivering a copy thereof to one of his
regularly established offices, with a fee of ten dollars, and such
service shall be sufficient service upon such non-resident provided that
notice of such service and a copy of the summons and complaint are
forthwith sent by or on behalf of the plaintiff to the defendant by
registered mail with return receipt requested. The plaintiff shall file
with the clerk of the court in which the action is pending, or with the
judge or justice of such court in case there be no clerk, an affidavit
of compliance herewith, a copy of the summons and complaint, and either
a return receipt purporting to be signed by the defendant or a person
qualified to receive his registered mail, in accordance with the rules
an customs of the post-office department; or, if acceptance was refused
by the defendant or his agent, the original envelope bearing a notation
by the postal authorities that receipt was refused, and an affidavit by
or on behalf of the plaintiff that notice of such mailing and refusal
was forthwith sent to the defendant by ordinary mail. Where the summons
is mailed to a foreign country, other official proof of the delivery of
the mail may be filed in case the post-office department is unable to
obtain such a return receipt. The foregoing papers shall be filed within
thirty days after the return receipt or other official proof of delivery
or the original envelope bearing a notation of refusal, as the case may
be, is received by the plaintiff. Service of process shall be complete
ten days after such papers are filed. The return receipt or other
official proof of delivery shall constitute presumptive evidence that
the summons mailed was received by the defendant or a person qualified
to receive his registered mail; and the notation or refusal shall
constitute presumptive evidence that the refusal was by the defendant or
his agent. Service of such summons also may be made by mailing a copy
thereof to the secretary of state at this office in the city of Albany,
or by personally delivering a copy thereof to one of his regularly
established offices, with a fee of ten dollars, and by delivering a
duplicate copy thereof, with the complaint annexed thereto, to the
defendant personally without the state by a resident or citizen of the
state of New York or a sheriff, under-sheriff, deputy-sheriff or
constable of the county or other political subdivision in which the
personal service is made, or an officer authorized by the laws of this
state, to take acknowledgements of deeds to be recorded in this state,
or an attorney and/or counselor at law, solicitor, advocate or barrister
duly qualified to practice in the state or country where such service is
made, or by a United States marshal or deputy United States marshal.
Proof of personal service without the state shall be filed with the
clerk of the court in which the action is pending within thirty days
after such service. Personal service without the state is complete ten
days after proof thereof is filed. The court in which the action is
pending may order such extensions as may be necessary to afford the
defendant reasonable opportunity to defend the action.
Nothing herein shall be construed as affecting other methods of
service of process against non-residents as provided by law.
3. As used in this section "vessel" means a vessel as defined in
section two, subdivision six of this chapter, except a vessel having a
valid marine document issued by the United States or a foreign
government.
4. As used in this section, "owner" means any person other than a lien
holder having the property in or title to a vessel, and also any lessee
or bailee having the exclusive use thereof, under a lease or otherwise,
for a period greater than thirty days, and their liability under this
section, shall be joint and several. If a vessel be sold under a
contract of conditional sale whereby the title to such vessel remains in
the vendor, such vendor or his assignee shall not, after delivery of
such vessel, be deemed an owner within the provisions of this section,
but the vendee or his assignee, receiving possession thereof, shall be
deemed such owner notwithstanding the terms of such contract, until the
vendor or his assignee shall retake possession of such vessel. A
chattel mortgagee, conditional vendor, or an entruster as defined by
section fifty-one of the personal property law, of any vessel out of
possession, shall not be deemed an owner within the provisions of this
section.
5. All bonds executed by or policies of insurance issued to the owner
of any vessel subject to the provisions of this section shall contain a
provision for indemnity or security against the liability and
responsibility provided in this section; but this provision shall not be
construed as requiring that such a policy include insurance against any
liability of the insured, being an individual, for death of or injuries
to his or her spouse or injury to property of either.
6. This section shall not be construed to affect any of the rights of
an owner under the laws of the United States.
Operator. 1. No person shall operate a mechanically propelled
vessel on the navigable waters of the state or any tidewaters bordering
on or lying within the boundaries of Nassau and Suffolk counties, unless
the operator is at least ten years old and is the holder of a boating
safety certificate issued to him or her upon completion of a boating
safety course approved by the commissioner, the United States Power
Squadrons, the United States coast guard auxiliary or the United States
sailing association for a powerboating course or courses which are
approved by the commissioner.
a. The provisions of this subdivision shall not apply to persons who
are: certified by the commissioner as boating safety instructors;
members of the United States Power Squadrons; members of the United
States coast guard auxiliary; holders of public vessel licenses pursuant
to section sixty-four of this article; police officers, peace officers,
fire personnel, rescue personnel or lifeguards, when any such person is
acting pursuant to assigned duties; or licensed to operate vessels by
the United States coast guard or the Canadian coast guard. The
commissioner, by rule or regulation, may provide for the exemption of
additional persons not listed in this paragraph from the requirements of
this section.
b. The provisions of this subdivision shall supersede all local laws
or ordinances relating to requirements for boating safety certificates
to operate a mechanically propelled vessel.
c. For purposes of the section:
(i) "boating safety course" shall mean a course of instruction that
has been approved by the commissioner pursuant to sections seventy-five
and seventy-nine of this article; and
(ii) "boating safety certificate" shall mean a document which cannot
be altered and which is provided to a person who successfully completes
a boating safety course.
1-a. a. No person shall operate a personal watercraft or specialty
prop-craft upon the navigable waters of the state or any tidewaters
bordering on or lying within the boundaries of Nassau and Suffolk
counties unless the operator is fourteen years of age or older and the
holder of, or is accompanied by a person over eighteen years of age who
is the holder of a boating safety certificate issued by the
commissioner, the United States power squadrons, the United States coast
guard auxiliary, the United States sailing association for a
powerboating course or courses which are approved by the commissioner,
or other state or government, as a result of completing a course
approved by the commissioner.
b. No person who is the owner of a personal watercraft or specialty
prop-craft shall knowingly authorize or permit the operation thereof on
the navigable waters of the state or any tidewaters bordering on or
lying within the boundaries of Nassau or Suffolk counties unless the
operator is fourteen years of age or older and the holder of, or is
accompanied by a person over eighteen years of age who is the holder of
a boating safety certificate issued by the commissioner, the United
States power squadrons, United States coast guard auxiliary, the United
States sailing association for a powerboating course or courses which
are approved by the commissioner, or other state or government, as a
result of completing a course approved by the commissioner.
c. For the purposes of this subdivision "accompanied" shall mean upon
the vessel.
d. The provisions of this subdivision shall not apply to persons:
certified by the commissioner as boating safety instructors; members of
the United States power squadrons; members of the United States coast
guard auxiliary; holders of public vessel licenses pursuant to section
sixty-four of this article; police officers acting pursuant to assigned
duties; peace officers acting pursuant to assigned duties; lifeguards
acting pursuant to assigned duties; fire and rescue personnel acting
pursuant to assigned duties; and persons licensed to operate vessels by
the United States coast guard or the Canadian coast guard. The
commissioner by rule and regulation may provide for the exemption of
additional persons not listed in this paragraph from the requirements of
this section.
2. The failure of a person specified in subdivision one or one-a of
this section, to exhibit a boating safety certificate upon demand to any
magistrate, peace officer, acting pursuant to his or her special duties,
police officer, inspector of the state office of parks, recreation and
historic preservation, traveling navigation inspector or other officer
having authority to enforce the provisions of this chapter, shall be
presumptive evidence that such person is not the holder of such
certificate.
3. No person who is the owner of a mechanically propelled vessel shall
knowingly authorize or permit the operation thereof on the navigable
waters of the state or any tidewaters bordering on or lying within the
boundaries of Nassau and Suffolk counties, unless:
a. the operator is born on or before April thirtieth, nineteen hundred
ninety-six; or,
b. the operator is born on or after May first, nineteen hundred
ninety-six, is at least ten years of age and is the holder of a boating
safety certificate issued to him or her by the commissioner, the United
States Power Squadrons, the United States coast guard auxiliary, or the
United States sailing association for a powerboating course or courses
which are approved by the commissioner, or
c. the operator is younger than eighteen years of age, and is
accompanied on the mechanically propelled vessel by at least one person
eighteen years of age or older and is:
(i) the holder of a boating safety certificate issued to him or her by
the commissioner, the United States Power Squadrons, the United States
coast guard auxiliary, or the United States sailing association for a
powerboating course or courses which are approved by the commissioner,
or
(ii) not required by subdivision one of this section to hold a boating
safety certificate in order to operate a mechanically propelled vessel;
or
d. the operator is eighteen years of age or older, is a person
required by subdivision one of this section to hold a boating safety
certificate in order to operate a mechanically propelled vessel, and is
accompanied by a person who is at least eighteen years of age and is the
holder of a boating safety certificate.
e. The provisions of this subdivision shall supersede all local laws
or ordinances relating to requirements for boating safety certificates
to operate a mechanically propelled vessel.
4. Whenever any police officer or peace officer authorized to enforce
the provisions of this chapter having reasonable cause to believe that a
person is operating a vessel in violation of section forty-nine-a of
this article, or any other provision of this article for which a
suspension may be imposed, such officer may demand of such person his or
her name, address and an explanation of his or her conduct.
5. The provisions of subdivisions one, one-a and two of this section
shall not apply while the operator is actually preparing for or
competing in a regatta or boat race authorized under section thirty-four
of this chapter or for which a marine event permit has been issued by
the United States coast guard.
6. No person operating a vessel upon the navigable waters of the state
or on the tidewaters bordering on and lying within the boundaries of
Nassau or Suffolk county shall fail or refuse to comply with any lawful
order or direction of any police officer or peace officer acting
pursuant to his or her special duties. Failure or refusal to comply with
such lawful order or direction shall be a violation punishable as
provided for in subdivision seven of this section.
7. A violation of subdivision one, one-a, two or six of this section
shall constitute a violation punishable as set forth in section
seventy-three-c of this article.
Operation of a vessel while under the influence of alcohol or
drugs. 1. Definitions. As used in this section, unless the context
clearly indicates otherwise:
(a) The term "vessel" shall be every description of watercraft or
other artificial contrivance propelled in whole or in part by mechanical
power and, which is used or capable of being used as a means of
transportation over water, and which is underway and not at anchor or
made fast to the shore or ground. The term "vessel" shall include a
"public vessel" as defined herein unless otherwise specified.
(b) The term "public vessel" shall mean and include every vessel which
is propelled in whole or in part by mechanical power and is used or
operated for commercial purposes on the navigable waters of the state;
that is either carrying passengers, carrying freight, towing, or for any
other use, for which a compensation is received, either directly or
where provided as an accommodation, advantage, facility or privilege at
any place of public accommodation, resort or amusement.
(c) The term "waters of the state" means all of the waterways or
bodies of water located within New York state or that part of any body
of water which is adjacent to New York state over which the state has
territorial jurisdiction, on which a vessel or public vessel may be used
or operated, including Nassau and Suffolk counties.
2. Offenses: criminal penalties. (a) No person shall operate a vessel
upon the waters of the state while his or her ability to operate such
vessel is impaired by the consumption of alcohol. (1) A violation of
this subdivision shall be an offense and shall be punishable by a fine
of not less than three hundred dollars nor more than five hundred
dollars, or by imprisonment in a penitentiary or county jail for not
more than fifteen days, or by both such fine and imprisonment. (2) A
person who operates a vessel in violation of this subdivision after
being convicted of a violation of any subdivision of this section within
the preceding five years shall be punished by a fine of not less than
five hundred dollars nor more than seven hundred fifty dollars, or by
imprisonment of not more than thirty days in a penitentiary or county
jail or by both such fine and imprisonment. (3) A person who operates a
vessel in violation of this subdivision after being convicted two or
more times of a violation of any subdivision of this section within the
preceding ten years shall be guilty of a misdemeanor, and shall be
punished by a fine of not less than seven hundred fifty dollars nor more
than fifteen hundred dollars, or by imprisonment of not more than one
hundred eighty days in a penitentiary or county jail or by both such
fine and imprisonment.
(b) No such person shall operate a vessel other than a public vessel
while he has .08 of one per centum or more by weight of alcohol in his
blood, breath, urine, or saliva, as determined by the chemical test made
pursuant to the provisions of subdivision seven of this section.
(c) No such person shall operate a public vessel while he has .04 of
one per centum or more by weight of alcohol in his blood, breath, urine,
or saliva, as determined by the chemical test made pursuant to the
provisions of subdivision seven of this section.
(d) No person shall operate a vessel while he is in an intoxicated
condition.
(e) No person shall operate a vessel while his ability to operate such
vessel is impaired by the use of a drug as defined by section one
hundred fourteen-a of the vehicle and traffic law.
(e-1) No person sixteen years of age or older shall operate a vessel
in violation of paragraph (b), (d) or (e) of this subdivision while a
child who is fifteen years of age or less is a passenger in such vessel.
(f)(1) A violation of paragraph (b), (c), (d) or (e) of this
subdivision shall be a misdemeanor and shall be punishable by
imprisonment in a penitentiary or county jail for not more than one
year, or by a fine of not less than five hundred dollars nor more than
one thousand dollars, or by both such fine and imprisonment. (2) A
person who operates a vessel (i) in violation of paragraph (b), (c),
(d), (e) or (e-1) of this subdivision after having been convicted of a
violation of paragraph (b), (c), (d), (e) or (e-1) of this subdivision,
or of operating a vessel or public vessel while intoxicated or while
under the influence of drugs, within the preceding ten years, or (ii) in
violation of paragraph (e-1) of this subdivision, shall be guilty of a
class E felony and shall be punished by a period of imprisonment as
provided in the penal law, or by a fine of not less than one thousand
dollars nor more than five thousand dollars, or by both such fine and
imprisonment. (3) A person who operates a vessel in violation of
paragraph (b), (c), (d), (e) or (e-1) of this subdivision after having
been twice convicted of a violation of any of such paragraph (b), (c),
(d), (e) or (e-1) of this subdivision or of operating a vessel or public
vessel while intoxicated or under the influence of drugs, within the
preceding ten years, shall be guilty of a class D felony and shall be
punished by a fine of not less than two thousand dollars nor more than
ten thousand dollars or by a period of imprisonment as provided in the
penal law, or by both such fine and imprisonment.
3. Privilege to operate a vessel; suspensions. (a) The court shall
suspend a person's privilege to operate a vessel and may suspend a
vessel registration for:
(1) a period of at least six but less than twelve months where an
operator is convicted of a violation of paragraph (a) of subdivision two
of this section. In determining the length of such suspension or
suspensions, the court may take into consideration the seriousness of
the offense and may impose a period of suspension whereby such
suspension may be in effect during a portion of the current or
subsequent boating season;
(2) a period of twelve months where an operator is convicted of a
violation of paragraph (b), (c), (d) or (e) of subdivision two of this
section;
(3) a period of twenty-four months where a person is convicted of (i)
a violation of paragraph (b), (c), (d), (e) or (e-1) of subdivision two
of this section after having been convicted of a violation of paragraph
(b), (c), (d), (e) or (e-1) of subdivision two of this section or of
operating a vessel or public vessel while intoxicated or under the
influence of drugs within the preceding ten years, or (ii) a violation
of paragraph (e-1) of subdivision two of this section.
(b) The court shall report each conviction recorded pursuant to this
section to the commissioner of motor vehicles and the commissioner of
parks, recreation and historic preservation on forms provided by the
department of motor vehicles. Such reports shall include the length of
any suspension imposed on the privilege to operate a vessel and any
suspension imposed against a vessel registration. The department of
motor vehicles shall maintain a record of all convictions and
suspensions in order to effectuate the provisions of this section.
4. (a) Operation of vessel while operating privileges have been
suspended. No person shall operate a vessel upon the waters of the state
while operating privileges have been suspended pursuant to this section
or section forty-nine-b of this article. A violation of the provisions
of this paragraph shall be a violation and shall be punishable by a fine
of not less than three hundred fifty dollars nor more than seven hundred
fifty dollars or by imprisonment for a period of not more than ninety
days, or by both such fine and imprisonment.
(b) A person who is in violation of the provisions of paragraph (a) of
this subdivision, and in addition is in violation of the provisions of
any paragraph of subdivision two of this section arising out of the same
incident, shall be guilty of a misdemeanor punishable by a fine of not
less than five hundred dollars nor more than five thousand dollars or by
a period of imprisonment for a period of not more than one year or by
both such fine and imprisonment.
5. Sentencing limitations. Notwithstanding any provision of the penal
law, no judge or magistrate shall impose a sentence of unconditional
discharge for a violation of paragraph (b), (c), (d), (e) or (e-1) of
subdivision two of this section nor shall he or she impose a sentence of
conditional discharge unless such conditional discharge is accompanied
by a sentence of a fine as provided in this section.
5-a. Sentencing; previous convictions. When sentencing a person for a
violation of paragraph (b), (c), (d), (e) or (e-1) of subdivision two of
this section pursuant to subparagraph two of paragraph (f) of
subdivision two of this section, the court shall consider any prior
convictions the person may have for a violation of subdivision two,
two-a, three, four, or four-a of section eleven hundred ninety-two of
the vehicle and traffic law within the preceding ten years. When
sentencing a person for a violation of paragraph (b), (c), (d), (e) or
(e-1) of subdivision two of this section pursuant to subparagraph three
of paragraph (f) of subdivision two of this section, the court shall
consider any prior convictions the person may have for a violation of
subdivision two, two-a, three, four, or four-a of section eleven hundred
ninety-two of the vehicle and traffic law within the preceding ten
years. When sentencing a person for a violation of subparagraph two of
paragraph (a) of subdivision two of this section, the court shall
consider any prior convictions the person may have for a violation of
any subdivision of section eleven hundred ninety-two of the vehicle and
traffic law within the preceding five years. When sentencing a person
for a violation of subparagraph three of paragraph (a) of subdivision
two of this section, the court shall consider any prior convictions the
person may have for a violation of any subdivision of section eleven
hundred ninety-two of the vehicle and traffic law within the preceding
ten years.
6. Arrest and testing. (a) Notwithstanding the provisions of section
140.10 of the criminal procedure law, a police officer may, without a
warrant, arrest a person, in case of a violation of any paragraph of
subdivision two of this section, if such violation is coupled with an
accident or collision in which such person is involved, which in fact
had been committed, though not in the police officer's presence, when he
has reasonable cause to believe that the violation was committed by such
person. For the purposes of this subdivision police officer shall also
include a peace officer authorized to enforce this chapter when the
alleged violation constitutes a crime.
(b) Breath test for operators of vessel. Every person operating a
vessel on the waters of the state which has been involved in an accident
or which is operated in violation of any of the provisions of this
section which regulate the manner in which a vessel is to be properly
operated while underway shall, at the request of a police officer,
submit to a breath test to be administered by the police officer. If
such test indicates that such operator has consumed alcohol, the police
officer may request such operator to submit to a chemical test in the
manner set forth in subdivision seven of this section. For the purposes
of this section, a vessel is being "operated" only when such vessel is
underway and is being propelled in whole or in part by mechanical power.
7. Chemical tests. (a) Any person who operates a vessel on the waters
of the state shall be requested to consent to a chemical test of one or
more of the following: breath, blood, urine, or saliva for the purpose
of determining the alcoholic or drug content of his blood, provided that
such test is administered at the direction of a police officer: (1)
having reasonable cause to believe such person to have been operating in
violation of this subdivision or paragraph (a), (b), (c), (d), (e) or
(e-1) of subdivision two of this section and within two hours after such
person has been placed under arrest for any such violation or (2) within
two hours after a breath test as provided in paragraph (b) of
subdivision six of this section indicates that alcohol has been consumed
by such person and in accordance with the rules and regulations
established by the police force of which the officer is a member.
(b) If such person having been placed under arrest or after a breath
test indicates the presence of alcohol in the person's system and having
thereafter been requested to submit to such chemical test and having
been informed that the person's privilege to operate a vessel shall be
immediately suspended for refusal to submit to such chemical test or any
portion thereof, whether or not the person is found guilty of the charge
for which such person is arrested, refuses to submit to such chemical
test or any portion thereof, unless a court order has been granted
pursuant to subdivision eight of this section, the test shall not be
given and a written report of such refusal shall be immediately made by
the police officer before whom such refusal was made. Such report may be
verified by having the report sworn to, or by affixing to such report a
form notice that false statements made therein are punishable as a class
A misdemeanor pursuant to section 210.45 of the penal law and such form
notice together with the subscription of the deponent shall constitute a
verification of the report. The report of the police officer shall set
forth reasonable grounds to believe such arrested person to have been
operating a vessel in violation of any paragraph of subdivision two of
this section, that said person had refused to submit to such chemical
test, and that no chemical test was administered pursuant to the
requirements of subdivision eight of this section. The report shall be
presented to the court upon the arraignment of the arrested person. The
privilege to operate a vessel shall, upon the basis of such written
report, be temporarily suspended by the court without notice pending the
determination of a hearing as provided herein. Copies of such report
must be transmitted by the court to the commissioner of parks,
recreation and historic preservation and the commissioner of motor
vehicles and such transmittal may not be waived even with the consent of
all the parties. Such report shall be forwarded to each commissioner
within forty-eight hours of such arraignment. The court shall provide
such person with a hearing date schedule, a waiver form, and such other
information as may be required by the commissioner of motor vehicles. If
a hearing, as provided for in paragraph (c) of this subdivision, is
waived by such person, the commissioner of motor vehicles shall
immediately suspend the privilege to operate a vessel, as of the date of
receipt of such waiver in accordance with the provisions of paragraph
(d) of this subdivision.
(c) Any person whose privilege to operate a vessel has been suspended
pursuant to paragraph (b) of this subdivision is entitled to a hearing
in accordance with a hearing schedule to be promulgated by the
commissioner of motor vehicles. If the department fails to provide for
such hearing fifteen days after the date of the arraignment of the
arrested person, the privilege to operate a vessel of such person shall
be reinstated pending a hearing pursuant to this section. The hearing
shall be limited to the following issues: (1) did the police officer
have reasonable cause to believe that such person had been operating a
vessel in violation of any paragraph of subdivision two of this section;
(2) did the police officer make a lawful arrest of such person; (3) was
such person given sufficient warning, in clear or unequivocal language,
prior to such refusal that such refusal to submit to such chemical test
or any portion thereof, would result in the immediate suspension of such
person's privilege to operate a vessel whether or not such person is
found guilty of the charge for which the arrest was made; and (4) did
such person refuse to submit to such chemical test or any portion
thereof. If, after such hearing, the hearing officer, acting on behalf
of the commissioner of motor vehicles, finds on any one of said issues
in the negative, the hearing officer shall immediately terminate any
suspension arising from such refusal. If, after such hearing, the
hearing officer, acting on behalf of the commissioner of motor vehicles
finds all of the issues in the affirmative, such officer shall
immediately suspend the privilege to operate a vessel in accordance with
the provisions of paragraph (d) of this subdivision. A person who has
had the privilege to operate a vessel suspended pursuant to this
subdivision may appeal the findings of the hearing officer in accordance
with the provisions of article three-A of the vehicle and traffic law.
Any person may waive the right to a hearing under this section. Failure
by such person to appear for the scheduled hearing shall constitute a
waiver of such hearing, provided, however, that such person may petition
the commissioner of motor vehicles for a new hearing which shall be held
as soon as practicable.
(d) (1) Any privilege to operate a vessel which has been suspended
pursuant to paragraph (c) of this subdivision shall not be restored for
six months after such suspension. However, no such privilege shall be
restored for at least one year after such suspension in any case where
the person was under the age of twenty-one at the time of the offense,
has had a prior suspension resulting from refusal to submit to a
chemical test pursuant to this subdivision or subdivision six of section
forty-nine-b of this article, or has been convicted of a violation of
any paragraph of subdivision two of this section not arising out of the
same incident, within the five years immediately preceding the date of
such suspension; provided, however, a prior finding that a person under
the age of twenty-one has refused to submit to a chemical test pursuant
to such subdivision six of section forty-nine-b of this article shall
have the same effect as a prior finding of a refusal pursuant to this
subdivision solely for the purpose of determining the length of any
suspension required to be imposed under any provision of this article,
provided that the subsequent offense or refusal is committed or occurred
prior to the expiration of the retention period for such prior refusal
as set forth in paragraph (k) of subdivision one of section two hundred
one of the vehicle and traffic law. Notwithstanding any provision of
this paragraph to the contrary, any privilege to operate a vessel which
has been suspended pursuant to paragraph (c) of this subdivision, where
the person was under the age of twenty-one at the time of the refusal,
and such person under the age of twenty-one has a prior finding,
conviction or youthful offender adjudication resulting from a violation
of this section or section forty-nine-b of this article, not arising
from the same incident, shall not be restored for at least one year or
until such person reaches the age of twenty-one years, whichever is the
greater period of time.
(2) Any person whose privilege to operate a vessel is suspended
pursuant to the provisions of this subdivision shall also be liable for
a civil penalty in the amount of two hundred dollars except that if such
suspension is a second or subsequent suspension pursuant to this
subdivision issued within a five year period, or such person has been
convicted of a violation of any paragraph of subdivision two of this
section within the past five years not arising out of the same incident,
the civil penalty shall be in the amount of five hundred dollars. The
privilege to operate a vessel shall not be restored to such person
unless such penalty has been paid. The first one hundred dollars of each
penalty collected by the department of motor vehicles pursuant to the
provisions of this subdivision shall be paid to the commissioner of
motor vehicles for deposit to the general fund and the remainder of all
such penalties shall be paid to the commissioner of parks, recreation
and historic preservation for deposit in the "I Love NY Waterways"
boating safety fund established pursuant to section ninety-seven-nn of
the state finance law.
(e) The commissioner of motor vehicles in consultation with the
commissioner of parks, recreation and historic preservation shall
promulgate such rules and regulations as may be necessary to effectuate
the provisions of this subdivision.
(f) Evidence of a refusal to submit to such chemical test shall be
admissible in any trial, proceeding or hearing based upon a violation of
the provisions of this section, but only upon a showing that the person
was given sufficient warning, in clear and unequivocal language, of the
effect of such refusal and that the person persisted in his or her
refusal.
(g) Upon the request of the person tested, the results of such test
shall be made available to him or her.
8. Compulsory chemical tests. (a) Notwithstanding the provisions of
subdivision seven of this section, no person who operates a vessel in
the waters of this state may refuse to submit to a chemical test of one
or more of the following: breath, blood, urine or saliva, for the
purpose of determining the alcoholic and/or drug content of the blood
when a court order for such chemical test has been issued in accordance
with the provisions of this subdivision.
(b) Upon refusal by any person to submit to a chemical test or any
portion thereof as described in paragraph (a) of this subdivision, the
test shall not be given unless a police officer or a district attorney,
as defined in subdivision thirty-two of section 1.20 of the criminal
procedure law, requests and obtains a court order to compel a person to
submit to a chemical test to determine the alcoholic or drug content of
the person's blood upon a finding of reasonable cause to believe that:
(1) such person was the operator of a vessel and in the course of such
operation a person other than the operator was killed or suffered
serious physical injury as defined in section 10.00 of the penal law;
and
(2) (i) either such person operated the vessel in violation of any
paragraph of subdivision two of this section, or
(ii) a breath test administered by a police officer in accordance with
subdivision six of this section indicates that alcohol has been consumed
by such person; and
(3) such person has been placed under lawful arrest; and
(4) such person has refused to submit to a chemical test or any
portion thereof, requested in accordance with the provisions of
subdivision seven of this section or is unable to give consent to such a
test.
(c) For the purpose of this subdivision "reasonable cause" shall be
determined by viewing the totality of circumstances surrounding the
incident which, when taken together, indicate that the operator was
operating a vessel in violation of any paragraph of subdivision two of
this section. Such circumstances may include, but are not limited to:
evidence that the operator was operating a vessel in violation of any
provision of this chapter which regulates the manner in which a vessel
is to be properly operated while underway at the time of the incident;
any visible indication of alcohol or drug consumption or impairment by
the operator; any other evidence surrounding the circumstances of the
incident which indicates that the operator has been operating a vessel
while impaired by the consumption of alcohol or drugs or was intoxicated
at the time of the incident.
(d) (1) An application for a court order to compel submission to a
chemical test or any portion thereof, may be made to any supreme court
justice, county court judge or district court judge in the judicial
district in which the incident occurred, or if the incident occurred in
the city of New York before any supreme court justice or judge of the
criminal court of the city of New York. Such application may be
communicated by telephone, radio or other means of electronic
communication, or in person.
(2) The applicant must provide identification by name and title and
must state the purpose of the communication. Upon being advised that an
application for a court order to compel submission to a chemical test is
being made, the court shall place under oath the applicant and any other
person providing information in support of the application as provided
in subparagraph three of this paragraph. After being sworn the applicant
must state that the person from whom the chemical test was requested was
the operator of a vessel and in the course of such operation a person,
other than the operator, has been killed or seriously injured and, based
upon the totality of circumstances, there is reasonable cause to believe
that such person was operating a vessel in violation of any paragraph of
subdivision two of this section and, after being placed under lawful
arrest such person refused to submit to a chemical test or any portion
thereof, in accordance with the provisions of this section or is unable
to give consent to such a test or any portion thereof. The applicant
must make specific allegations of fact to support such statement. Any
other person properly identified, may present sworn allegations of fact
in support of the applicant's statement.
(3) Upon being advised that an oral application for a court order to
compel a person to submit to a chemical test is being made, a judge or
justice shall place under oath the applicant and any other person
providing information in support of the application. Such oath or oaths
and all of the remaining communication must be recorded, either by means
of a voice recording device or verbatim stenographic or verbatim
longhand notes. If a voice recording device is used or a stenographic
record made, the judge must have the record transcribed, certify to the
accuracy of the transcription and file the original record and
transcription with the court within seventy-two hours of the issuance of
the court order. If the longhand notes are taken, the judge shall
subscribe a copy and file it with the court within twenty-four hours of
the issuance of the order.
(4) If the court is satisfied that the requirements for the issuance
of a court order pursuant to the provisions of paragraph (b) of this
subdivision have been met, it may grant the application and issue an
order requiring the accused to submit to a chemical test to determine
the alcoholic and/or drug content of his blood and ordering the
withdrawal of a blood sample in accordance with the provisions of
subdivision nine of this section. When a judge or justice determines to
issue an order to compel submission to a chemical test based on an oral
application, the applicant therefor shall prepare the order in
accordance with the instructions of the judge or justice. In all cases
the order shall include the name of the issuing judge or justice, the
name of the applicant, and the date and time it was issued. It must be
signed by the judge or justice if issued in person, or by the applicant
if issued orally.
(5) Any false statement by an applicant or any other person in support
of an application for a court order shall subject such person to the
offenses for perjury set forth in article two hundred ten of the penal
law.
(e) An order issued pursuant to the provisions of this subdivision
shall require that a chemical test to determine the alcoholic and/or
drug content of the operator's blood must be administered. The
provisions of paragraphs (a), (b) and (c) of subdivision nine of this
section shall be applicable to any chemical test administered pursuant
to this section.
(f) A defendant who has been compelled to submit to a chemical test
pursuant to the provisions of this subdivision may move for the
suppression of such evidence in accordance with article seven hundred
ten of the criminal procedure law on the grounds that the order was
obtained and the test administered in violation of the provisions of
this subdivision or any other applicable law.
9. Testing procedures. (a) At the request of a police officer, the
following persons may withdraw blood for the purpose of determining the
alcohol or drug content therein: (1) a physician, a registered
professional nurse or a registered physician's assistant; or (2) under
the supervision and at the direction of a physician: a medical
laboratory technician or medical technologist as classified by civil
service; a phlebotomist; an advanced emergency medical technician as
certified by the department of health, or a medical laboratory
technician or medical technologist employed by a clinical laboratory
approved under title five of article five of the public health law. This
limitation shall not apply to the taking of a urine, saliva or breath
specimen.
(b) No person entitled to withdraw blood pursuant to paragraph (a) of
this subdivision or hospital employing such person and no other employer
of such person shall be sued or held liable for any act done or omitted
in the course of withdrawing blood at the request of a police officer or
peace officer acting pursuant to his special duties pursuant to this
subdivision.
(c) Any person who may have a cause of action arising from the
withdrawal of blood as aforesaid, for which no personal liability exists
under paragraph (b) of this subdivision, may maintain such action
against the state if the person entitled to withdraw blood pursuant to
paragraph (a) of this subdivision acted at the request of a police
officer or peace officer acting pursuant to his special duties, employed
by the state, or against the appropriate political subdivision of the
state if the person acted at the request of a police officer or peace
officer acting pursuant to his special duties, employed by a political
subdivision of the state. No action shall be maintained pursuant to this
paragraph unless notice of claim is duly filed or served in compliance
with law.
(d) Notwithstanding the foregoing provisions of this subdivision, an
action may be maintained by the state or a political subdivision thereof
against a person entitled to withdraw blood pursuant to paragraph (a) of
this subdivision or hospital employing such person for whose act or
omission the state or the political subdivision has been held liable
under this subdivision to recover damages, not exceeding the amount
awarded to the claimant, that may have been sustained by the state or
the political subdivision by reason of gross negligence on the part of
such person entitled to withdraw blood.
(e) The testimony of any person, other than a physician, entitled to
draw blood pursuant to paragraph (a) of this subdivision in respect to
any such withdrawal of blood made by him may be received in evidence
with the same weight, force and effect as if such withdrawal of blood
were made by a physician.
(f) The provisions of paragraphs (b), (c) and (d) of this subdivision
shall also apply with regard to any person employed by a hospital as
security personnel for any act done or omitted in the course of
withdrawing blood at the request of a police officer pursuant to a court
order in accordance with this subdivision.
(g) The person tested shall be permitted to choose a physician to
administer a chemical test in addition to the one administered at the
direction of the police officer.
10. Chemical test evidence. (a) Upon the trial of any such action or
proceeding arising out of actions alleged to have been committed by any
person arrested for a violation of any paragraph of subdivision two of
this section, the court shall admit evidence of the amount of alcohol or
drugs in the defendant's blood as shown by a test administered pursuant
to the provisions of subdivision seven or eight of this section.
(b) The following effect shall be given to evidence of blood alcohol
content, as determined by such tests, of a person arrested for a
violation of any paragraph of subdivision two of this section and who
was operating a vessel other than a public vessel:
(1) evidence that there was .05 of one per centum or less by weight of
alcohol in such person's blood shall be prima facie evidence that the
ability of such person to operate a vessel was not impaired by the
consumption of alcohol, and that such person was not in an intoxicated
condition.
(2) evidence that there was more than .05 of one per centum but less
than .07 of one per centum of weight in such person's blood shall be
prima facie evidence that such person was not in an intoxicated
condition, but such evidence shall be relevant evidence but not be given
prima facie effect, in determining whether the ability of such person to
operate a vessel was impaired by the consumption of alcohol.
(3) evidence that there was .07 of one per centum or more but less
than .08 of one per centum by weight of alcohol in his blood shall be
prima facie evidence that such person was not in an intoxicated
condition, but such evidence shall be given prima facie effect in
determining whether the ability of such person to operate a vessel was
impaired by the consumption of alcohol.
(c) Evidence of a refusal to submit to a chemical test or any portion
thereof shall be admissible in any trial or hearing provided the request
to submit to such a test was made in accordance with the provisions of
subdivision seven of this section.
11. Limitations. (a) A vessel operator may be convicted of a violation
of paragraphs (a), (b), (d) and (e) of subdivision two of this section,
notwithstanding that the charge laid before the court alleged a
violation of paragraph (b), (d) or (e) of subdivision two of this
section, and regardless of whether or not such condition is based on a
plea of guilty.
(b) In any case wherein the charge laid before the court alleges a
violation of paragraph (b), (c), (d) or (e) of subdivision two of this
section, any plea of guilty thereafter entered in satisfaction of such
charge must include at least a plea of guilty to the violation of the
provisions of one of the paragraphs of such subdivision two and no other
disposition by plea of guilty to any other charge in satisfaction of
such charge shall be authorized; provided, however, if the district
attorney upon reviewing the available evidence determines that the
charge of a violation of subdivision two of this section is not
warranted, he may consent, and the court may allow a disposition by plea
of guilty to another charge in satisfaction of such charge.
12. Suspension pending prosecution. (a) Without notice, pending any
prosecution, the court may suspend the right to operate a vessel where
the vessel operator has been charged with vehicular assault in the
second degree or vehicular manslaughter in the second degree as defined,
respectively, in sections 120.03 and 125.12 of the penal law.
(b) A suspension under this subdivision shall occur no later than
twenty days after the vessel operator's first appearance before the
court on the charges or at the conclusion of all proceedings required
for the arraignment, whichever comes first. In order for the court to
impose such suspension it must find that the accusatory instrument
conforms to the requirements of section 100.40 of the criminal procedure
law and there exists reasonable cause to believe that the accused
operated a vessel in violation of section 120.03 or 125.12 of the penal
law. At such time the operator shall be entitled to an opportunity to
make a statement regarding the enumerated issues and to present evidence
tending to rebut the court's findings. Where such suspension is imposed
upon such pending charge and the operator has requested a hearing
pursuant to article one hundred eighty of the criminal procedure law,
the court shall conduct such hearing. If upon completion of the hearing,
the court fails to find that there is reasonable cause to believe that
the operator committed a felony under section 120.03 or 125.12 of the
penal law the court shall promptly direct restoration of such operating
privileges to the operator unless such operating privileges are
suspended or revoked pursuant to any other provision of this chapter.
13. Boating safety course. Upon the conviction of any subdivision of
this section, the court shall, in addition to any other penalties
invoked under this section, require the convicted person, as a condition
of the sentence, to complete a boating safety course of the state, U.S.
Power Squadrons, U.S. Coast Guard Auxiliary or a powerboating course or
courses offered by the United States sailing association which are
approved by the commissioner and show proof of successful completion of
such course to the court or its designee.
14. Report. Where a law enforcement officer alleges a violation of
paragraph (e-1) of subdivision two of this section and the operator of
the vessel is sixteen years of age or older and is a parent, guardian,
custodian of, or other person legally responsible for, a child who is
fifteen years of age or less who is a passenger in such vessel, such
officer shall report or cause a report to be made in accordance with
title six of article six of the social services law, if applicable.
Operating a vessel after having consumed alcohol; under the
age of twenty-one; per se. 1. Prohibition. No person under the age of
twenty-one shall operate a vessel upon the waters of this state after
having consumed alcohol as defined in this section. For purposes of this
section, a person under the age of twenty-one is deemed to have consumed
alcohol only if such person has .02 of one per centum or more but not
more than .07 of one per centum by weight of alcohol in the person's
blood, as shown by chemical analysis of such person's blood, breath,
urine or saliva, made in accordance with the provisions of subdivision
four of section eleven hundred ninety-four of the vehicle and traffic
law. Any person who operates a vessel in violation of this section, and
who is not charged with a violation of subdivision two of section
forty-nine-a of this article arising out of the same incident shall be
referred to the department of motor vehicles for action in accordance
with the provisions of this section. Notwithstanding any provision of
law to the contrary, a finding that a person under the age of twenty-one
operated a vessel after having consumed alcohol in violation of this
section is not a judgment of conviction for a crime or any other
offense.
2. Breath test for operators of vessel. Every person under the age of
twenty-one operating a vessel on the waters of the state which has been
involved in an accident or which is operated in violation of any of the
provisions of this section or section forty-nine-a of this article which
regulate the manner in which a vessel is to be properly operated while
underway shall, at the request of a police officer, submit to a breath
test to be administered by the police officer. If such test indicates
that such operator has consumed alcohol, the police officer may request
such operator to submit to a chemical test in the manner set forth in
this section. For the purposes of this section, a vessel is being
"operated" only when such vessel is underway and is being propelled in
whole or in part by mechanical power.
3. Chemical tests. (a) Any person under the age of twenty-one who
operates a vessel on the waters of the state shall be requested to
consent to a chemical test of one or more of the following: breath,
blood, urine, or saliva for the purpose of determining the alcoholic or
drug content of his blood, provided that such test is administered at
the direction of a police officer: (1) having reasonable grounds to
believe such person to have been operating in violation of this section
or paragraph (a), (b), (c), (d) or (e) of subdivision two of section
forty-nine-a of this article and within two hours after such person has
been placed under arrest, or detained pursuant to paragraph (c) of this
subdivision, for any such violation or (2) within two hours after a
breath test as provided in subdivision two of this section indicates
that alcohol has been consumed by such person and in accordance with the
rules and regulations established by the police force of which the
officer is a member.
(a-1) If such person having been detained pursuant to paragraph (c) of
this subdivision, and having thereafter been requested to submit to such
chemical test and having been informed that the person's privilege to
operate a vessel and any non-resident operating privilege shall be
suspended for refusal to submit to such chemical test or any portion
thereof, whether or not there is a finding of operating a vessel after
having consumed alcohol, refuses to submit to such chemical test or any
portion thereof, unless a court order has been granted pursuant to
subdivision eight of section forty-nine-a of this article, the test
shall not be given and a written report of such refusal shall be
immediately made by the police officer before whom such refusal was
made. Such report may be verified by having the report sworn to, or by
affixing to such report a form notice that false statements made therein
are punishable as a class A misdemeanor pursuant to section 210.45 of
the penal law and such form notice together with the subscription of the
deponent shall constitute a verification of the report. The report of
the police officer shall set forth reasonable grounds to believe such
person to have been operating a vessel in violation of this section, and
that said person had refused to submit to such chemical test. The report
shall be forwarded to the commissioner of motor vehicles within
forty-eight hours in a manner to be prescribed by such commissioner of
motor vehicles, and all subsequent proceedings with regard to refusal to
submit to such chemical test by such person shall be as set forth in
subdivision six of this section. The police officer shall provide such
person with a hearing date schedule, a waiver form, and such other
information as may be required by the commissioner of motor vehicles.
(b) For the purposes of this subdivision, "reasonable grounds" to
believe that a person has been operating a vessel after having consumed
alcohol in violation of this section shall be determined by viewing the
totality of circumstances surrounding the incident which, when taken
together, indicate that the operator was operating a vessel in violation
of this section. Such circumstances may include any visible or
behavioral indication of alcohol consumption by the operator, the
existence of an open container containing or having contained an
alcoholic beverage in or around the vessel being operated, or any other
evidence surrounding the circumstances of the incident which indicates
that the operator has been operating a vessel after having consumed
alcohol at the time of the incident.
(c) Notwithstanding any other provision of law to the contrary, no
person under the age of twenty-one shall be arrested for an alleged
violation of this section. However, a person under the age of twenty-one
for whom a chemical test is authorized pursuant to this subdivision may
be temporarily detained by the police solely for the purpose of
requesting or administering such chemical test whenever arrest without a
warrant for a petty offense would be authorized in accordance with the
provisions of section 140.10 of the criminal procedure law.
4. Chemical test report and hearing. (a) Whenever a chemical test of
the breath, blood, urine or saliva of an operator who is under the age
of twenty-one indicates that such person has operated a vessel in
violation of this section, and such person is not charged with violating
any subdivision of section forty-nine-a of this article arising out of
the same incident, the police officer who administered the test shall
forward a report of the results of such test to the department of motor
vehicles within twenty-four hours of the time when such results are
available in a manner prescribed by the commissioner of motor vehicles,
and the operator shall be given a hearing notice as provided in
subdivision five of this section, to appear before a hearing officer in
the county where the chemical test was administered, or in an adjoining
county under such circumstances as prescribed by the commissioner of
motor vehicles, on a date to be established in accordance with a
schedule promulgated by the commissioner of motor vehicles. Such hearing
shall occur within thirty days of, but not less than forty-eight hours
from, the date that the chemical test was administered, provided,
however, where the commissioner of motor vehicles determines, based upon
the availability of hearing officers and the anticipated volume of
hearings at a particular location, that the scheduling of such hearing
within thirty days would impair the timely scheduling or conducting of
other hearings, such hearing shall be scheduled at the next hearing date
for such particular location. When providing the operator with such
hearing notice, the police officer shall also give to the operator, and
shall, prior to the commencement of the hearing, provide to the
department of motor vehicles, copies of the following reports, documents
and materials: any written report or document, or portion thereof,
concerning a physical examination, a scientific test or experiment,
including the most recent record of inspection, or calibration or repair
of machines or instruments utilized to perform such scientific tests or
experiments and the certification certificate, if any, held by the
operator of the machine or instrument, which tests or examinations were
made by or at the request or direction of a public servant engaged in
law enforcement activity. The report of the police officer shall be
verified by having the report sworn to, or by affixing to such report a
form notice that false statements made therein are punishable as a class
A misdemeanor pursuant to section 210.45 of the penal law and such form
notice together with the subscription of the deponent shall constitute
verification of the report.
(b) Every person under the age of twenty-one who is alleged to have
operated a vessel after having consumed alcohol as set forth in this
section, and who is not charged with violating any subdivision of
section forty-nine-a of this article arising out of the same incident,
is entitled to a hearing before a hearing officer in accordance with the
provisions of this section. Unless otherwise provided by law, the
privilege to operate a vessel or any non-resident operating privilege of
such person shall not be suspended or revoked prior to the scheduled
date for such hearing.
(i) The hearing shall be limited to the following issues: (1) did such
person operate the vessel; (2) was a valid request to submit to a
chemical test made by the police officer in accordance with the
provisions of this section; (3) was such person less than twenty-one
years of age at the time of operation of the vessel; (4) was the
chemical test properly administered in accordance with the provisions of
this section; (5) did the test find that such person had operated a
vessel after having consumed alcohol as defined in this section; and (6)
did the police officer make a lawful stop of such person. The burden of
proof shall be on the police officer to prove each of these issues by
clear and convincing evidence.
(ii) Every person who is entitled to a hearing pursuant to this
subdivision has the right to be present at the hearing; the right to be
represented by attorney, or in the hearing officer's discretion, by any
other person the operator chooses; the right to receive and review
discovery materials as provided in this subdivision; the right not to
testify; the right to present evidence and witnesses in his own behalf,
the right to cross examine adverse witnesses, and the right to appeal
from an adverse determination in accordance with article three-A of the
vehicle and traffic law. Any person representing the operator must
conform to the standards of conduct required of attorneys appearing
before state courts, and failure to conform to these standards will be
grounds for declining to permit his continued appearance in the hearing.
(iii) Hearings conducted pursuant to this subdivision shall be in
accordance with this subdivision and with the provisions applicable to
the adjudication of traffic infractions pursuant to the following
provisions of part 124 of title fifteen of the codes, rules and
regulations of the state of New York: paragraph (b) of section 124.1
regarding the opening statement; paragraph (b) of section 124.2
regarding the right to representation and to remain silent and
paragraphs (a) through (e) of section 124.4 regarding the conduct of the
hearing, procedure and refusal; provided, however, that nothing
contained in this subparagraph shall be deemed to preclude a hearing
officer from changing the order of a hearing conducted pursuant to this
subdivision as justice may require and for good cause shown.
(iv) The rules governing receipt of evidence in a court of law shall
not apply in a hearing conducted pursuant to this subdivision except as
follows:
(1) on the merits of the charge, and whether or not a party objects,
the hearing officer shall exclude from consideration the following: a
privileged communication; evidence which, for constitutional reasons,
would not be admissible in a court of law; evidence of prior misconduct,
incompetency or illness, except where such evidence would be admissible
in a court of law; evidence which is irrelevant or immaterial;
(2) no negative inference shall be drawn from the operator's
exercising the right not to testify.
(v) If, after such hearing, the hearing officer, acting on behalf of
the commissioner of motor vehicles, finds all of the issues set forth in
this subdivision in the affirmative, the hearing officer shall suspend
the operating privilege or non-resident operating privilege of such
person in accordance with the time periods set forth in this section.
If, after such hearing, the hearing officer, acting on behalf of the
commissioner of motor vehicles, finds any of said issues in the
negative, the hearing officer must find that the operator did not
operate a vessel after having consumed alcohol.
(vi) A person who has had a privilege to operate a vessel or
non-resident operating privilege suspended pursuant to the provisions of
this section may appeal the finding of the hearing officer in accordance
with the provisions of article three-A of the vehicle and traffic law.
(c) Unless an adjournment of the hearing date has been granted, upon
the operator's failure to appear for a scheduled hearing, the
commissioner shall suspend the privilege to operate a vessel or
non-resident operating privilege until the operator petitions the
commissioner of motor vehicles and a rescheduled hearing is conducted,
provided, however, the commissioner shall restore such person's
operating privilege or non-resident operating privilege if such
rescheduled hearing is adjourned at the request of a person other than
the operator. Requests for adjournments shall be made and determined in
accordance with regulations promulgated by the commissioner of motor
vehicles. If such a request by the operator for an adjournment is
granted, the commissioner of motor vehicles shall notify the operator of
the rescheduled hearing, which shall be scheduled for the next hearing
date. If a second or subsequent request by the operator for an
adjournment is granted, the operator's privilege to operate a vessel or,
non-resident operating privilege, may be suspended pending the hearing
at the time such adjournment is granted; provided, however, that the
records of the department or the evidence already admitted furnishes
reasonable grounds to believe such suspension is necessary to prevent
continuing violations or a substantial safety hazard; and provided
further, that such hearing shall be scheduled for the next hearing date.
If a police officer does not appear for a hearing, the hearing officer
shall have the authority to dismiss the charge. Any person may waive the
right to a hearing under this subdivision, in a form and manner
prescribed by the commissioner of motor vehicles, and may enter an
admission of guilt, in person or by mail, to the charge of operating a
vessel in violation of this section. Such admission of guilt shall have
the same force and effect as a finding of guilt entered following a
hearing conducted pursuant to this subdivision.
5. Hearing notice. The hearing notice issued to an operator pursuant
to subdivision four of this section shall be in a form as prescribed by
the commissioner. In addition to containing information concerning the
time, date and location of the hearing, and such other information as
the commissioner deems appropriate, such hearing notice shall also
contain the following information: the date, time and place of the
offense charged; the procedures for requesting an adjournment of a
scheduled hearing as provided in this section, the operator's right to a
hearing conducted pursuant to this section and the right to waive such
hearing and plead guilty, either in person or by mail, to the offense
charged.
6. Refusal report and hearing. (a) Any person under the age of
twenty-one who is suspected of operating a vessel after having consumed
alcohol in violation of this section, and who is not charged with
violating any subdivision of section forty-nine-a of this article
arising out of the same incident, and who has been requested to submit
to a chemical test pursuant to subdivision three of this section and
after having been informed that his privilege to operate a vessel and
any non-resident operating privilege shall be suspended for refusal to
submit to such chemical test or any portion thereof, whether or not
there is a finding of operating a vessel after having consumed alcohol,
and such person refuses to submit to such chemical test or any portion
thereof, shall be entitled to a hearing in accordance with a schedule
promulgated by the commissioner of motor vehicles, and such hearing
shall occur within thirty days of, but not less than forty-eight hours
from, the date of such refusal, provided, however, where the
commissioner of motor vehicles determines, based upon the availability
of hearing officers and the anticipated volume of hearings at a
particular location, that the scheduling of such hearing within thirty
days would impair the timely scheduling or conducting of other hearings,
such hearing shall be scheduled at the next hearing date for such
particular location.
(b) Unless an adjournment of the hearing date has been granted, upon
the operator's failure to appear for a scheduled hearing, the
commissioner of motor vehicles shall suspend the operating privilege or
non-resident operating privilege until the operator petitions the
commissioner of motor vehicles and a rescheduled hearing is conducted,
provided, however, the commissioner shall restore such person's
operator's privilege or non-resident operating privilege if such
rescheduled hearing is adjourned at the request of a person other than
the operator. Requests for adjournments shall be made and determined in
accordance with regulations promulgated by the commissioner of motor
vehicles. If such a request by the operator for an adjournment is
granted, the commissioner of motor vehicles shall notify the operator of
the rescheduled hearing, which shall be scheduled for the next hearing
date. If a second or subsequent request by the operator for an
adjournment is granted, the operator's privilege to operate a vessel or
non-resident operating privilege may be suspended pending the hearing at
the time such adjournment is granted; provided, however, that the
records of the department of motor vehicles or the evidence already
admitted furnishes reasonable grounds to believe such suspension is
necessary to prevent continuing violations or a substantial safety
hazard; and provided further, that such hearing shall be scheduled for
the next hearing date.
If a police officer does not appear for a hearing, the hearing officer
shall have the authority to dismiss the charge. Any person may waive the
right to a hearing under this subdivision.
(c) The hearing on the refusal to submit to a chemical test pursuant
to this subdivision shall be limited to the following issues: (1) was a
valid request to submit to a chemical test made by the police officer in
accordance with the provisions of subdivision three of this section; (2)
was such person given sufficient warning, in clear or unequivocal
language, prior to such refusal that such refusal to submit to such
chemical test or any portion thereof, would result in the suspension of
such person's privilege to operate a vessel or nonresident operating
privilege, whether or not such person is found to have operated a vessel
after having consumed alcohol; (3) did such person refuse to submit to
such chemical test or any portion thereof; (4) did such person operate
the vessel; (5) was such person less than twenty-one years of age at the
time of operation of the vessel; (6) did the police officer make a
lawful stop of such person. If, after such hearing, the hearing officer,
acting on behalf of the commissioner of motor vehicles, finds on any one
said issue in the negative, the hearing officer shall not suspend the
operator's privilege to operate a vessel or non-resident operating
privilege and shall immediately terminate any outstanding suspension of
the operator's privilege to operate a vessel or non-resident operating
privilege arising from such refusal. If, after such hearing, the hearing
officer, acting on behalf of the commissioner of motor vehicles, finds
all of the issues in the affirmative, such hearing officer shall
immediately suspend the privilege to operate a vessel or any
non-resident operating privilege in accordance with the provisions of
this section. A person who has had a privilege to operate a vessel or
non-resident operating privilege suspended pursuant to the provisions of
this section may appeal the findings of the hearing officer in
accordance with the provisions of article three-A of the vehicle and
traffic law.
(d) Any privilege which has been suspended pursuant to paragraph (c)
of this subdivision shall not be restored for one year after such
suspension. Where such person under the age of twenty-one years has a
prior finding, conviction or youthful offender adjudication resulting
from a violation of this section or section forty-nine-a of this
article, not arising from the same incident, such privilege shall not be
restored for at least one year or until such person reaches the age of
twenty-one years, whichever is the greater period of time.
7. Effect of prior finding of having consumed alcohol. A prior finding
that a person under the age of twenty-one has operated a vessel after
having consumed alcohol pursuant to this section shall have the same
effect as a prior conviction of a violation of paragraph (a) of
subdivision two of section forty-nine-a of this article solely for the
purpose of determining the length of any suspension required to be
imposed under any provision of this article, provided that the
subsequent offense is committed prior to the expiration of the retention
period for such prior offense or offenses set forth in paragraph (k) of
subdivision one of section two hundred one of the vehicle and traffic
law.
8. Plea bargain limitations. (a) In any case wherein the charge laid
before a court alleges a violation of paragraph (a) of subdivision two
of section forty-nine-a of this article and the operator was under the
age of twenty-one at the time of such violation, any plea of guilty
thereafter entered in satisfaction of such charge must include at least
a plea of guilty to the violation of such subdivision; provided,
however, such charge may instead be satisfied as provided in paragraph
(b) of this subdivision, and, provided further that, if the district
attorney, upon reviewing the available evidence, determines that the
charge of a violation of paragraph (a) of subdivision two of section
forty-nine-a of this article is not warranted, such district attorney
may consent, and the court may allow a disposition by plea of guilty to
another charge in satisfaction of such charge; provided, however, in all
such cases, the court shall set forth upon the record the basis for such
disposition.
(b) In any case wherein the charge laid before a court alleges a
violation of paragraph (a) of subdivision two of section forty-nine-a of
this article by a person who was under the age of twenty-one at the time
of commission of the offense, the court, with the consent of both
parties, may allow the satisfaction of such charge by the defendant's
agreement to be subject to action by the commissioner of motor vehicles
pursuant to this section. In any such case, the defendant shall waive
the right to a hearing under this section and such waiver shall have the
same force and effect as a finding of a violation of this section
entered after a hearing conducted pursuant to this section. The
defendant shall execute such waiver in open court, and, if represented
by counsel, in the presence of his attorney, on a form to be provided by
the commissioner of motor vehicles, which shall be forwarded by the
court to the commissioner of motor vehicles within ninety-six hours. To
be valid, such form shall, at a minimum, contain clear and conspicuous
language advising the defendant that a duly executed waiver: (i) has the
same force and effect as a guilty finding following a hearing pursuant
to this section; (ii) shall subject the defendant to the imposition of
sanctions pursuant to this section; and (iii) may subject the defendant
to increased sanctions upon a subsequent violation of this section or
section forty-nine-a of this article. Upon receipt of a duly executed
waiver pursuant to this paragraph, the commissioner of motor vehicles
shall take such administrative action and impose such sanctions as may
be required by this section.
9. Sanctions. (a) Except as otherwise provided in this subdivision, a
person's privilege to operate a vessel upon the waters of the state
shall be suspended for six months, where such person has been found to
have operated a vessel after having consumed alcohol in violation of
this section.
(b) The suspension of operating privileges pursuant to this
subdivision shall be for one year or until such person reaches the age
of twenty-one, whichever is the greater period of time, where such
person has been found to have operated a vessel after having consumed
alcohol in violation of this section, and has previously been found to
have operated a vessel after having consumed alcohol in violation of
this section or has previously been convicted of, or adjudicated a
youthful offender for any violation of section forty-nine-a of this
article not arising out of the same incident.
(c) Where the commissioner of motor vehicles determines that the
period of suspension imposed pursuant to this section would extend
beyond the current boating season, such commissioner may direct that any
portion of such suspension period take effect during the following
boating season.
10. Civil penalty. (a) Unless otherwise provided, any person whose
privilege to operate a vessel has been suspended pursuant to the
provisions of this section shall also be liable for a civil penalty in
the amount of one hundred twenty-five dollars.
(b) The first one hundred dollars of each civil penalty collected
pursuant to the provisions of this section shall be paid to the
commissioner of motor vehicles for deposit into the general fund and the
remainder of all such civil penalties shall be paid to the commissioner
of parks, recreation, and historic preservation for deposit into the "I
Love NY Waterways" boating safety fund established pursuant to section
ninety-seven-nn of state finance law.
11. Nothing contained in this section shall be deemed to exempt
persons under the age of twenty-one from arrest and prosecution under
section forty-nine-a of this article for an alleged violation of such
section.
Termination of unsafe operation. A police officer or peace
officer, acting pursuant to his or her special duties, who has
reasonable cause to believe that a vessel, including a rowboat, canoe or
kayak, is being operated, in his or her presence, upon the navigable
waters of the state, or any tidewaters bordering on or lying within the
boundaries of the county of Nassau or Suffolk, in violation of any
section of this article, and that it would be so imminently hazardous to
continue to operate such vessel as to be likely to cause an accident or
physical injury, may direct the master or operator of such vessel to
cease operating upon such waters, and to proceed immediately to dock the
vessel at the nearest available safe anchorage, dock or mooring until
the violation charged by such officer is finally adjudicated or until
such hazardous condition is remediated or otherwise corrected.
Application. Sections forty-seven, forty-seven-b, forty-eight,
forty-nine-a and forty-nine-b of this chapter shall apply to any vessel
operated on privately or publicly owned underground non-navigable
waterways with no navigable inlet or outlet that carry passengers for
compensation, either received directly or where provided as an
accommodation, advantage, facility or privilege at any place of public
accommodation, resort or amusement.
PART 2 Public Vessels
Owners to notify inspector and apply for inspection. It shall be
the duty of the owner of a public vessel which he intends to operate on
the navigable waters of the state to notify the inspector of such
intention at least one month before it is desired to place the vessel in
operation and to request an inspection of such vessel. Upon receipt of
such notification the inspector shall enter the application on the
records of his office. A temporary permit to operate such vessel pending
inspection may be issued by the inspector, if he finds through
documentary evidence that such vessel is properly equipped and manned
for the safety of life and property. No public vessel shall be used or
operated without a certificate of inspection or a temporary permit as
herein provided.
Rules and regulations. The commissioner may adopt, amend and
repeal rules and regulations as he or she deems necessary to carry out
the provisions of this part.
Construction against fire. All public vessels shall be so
constructed that inflammable material about any machinery or apparatus
involving danger of fire where such inflammable material is exposed to
ignition, shall be shielded by some incombustible material so that the
air may circulate freely between such material and the ignitable
substances. Before granting a certificate of inspection, the inspector
shall require that all necessary provisions be made throughout such
vessel as he may judge expedient to guard against loss or damage by
fire.
Stairways and passageways. 1. Every public vessel certified to
carry passengers shall be provided with (a) permanent stairways and
other sufficient and safe means convenient for passing from one deck to
the other, and (b) passageways large enough to allow persons freely to
pass, which shall be open fore and aft of the length of the vessel, and
to and along the railings, which shall be functional, unobstructed and
passable whenever the vessel is engaged in carrying passengers.
2. In addition to any other requirement imposed by this section,
public vessels certified to carry more than twenty passengers shall be
provided with a minimum of two means of egress on each deck which shall
be functional, unobstructed and passable whenever the vessel is engaged
in carrying passengers.
3. Any person who operates a public vessel, and any owner of a public
vessel who permits a person to operate such vessel, in contravention of
the requirements of subdivision one of this section, shall be guilty of
a violation punishable as set forth in section seventy-three-c of this
article.
4. Any person who operates a public vessel, and any owner of a public
vessel who permits a person to operate such vessel, in contravention of
the requirements of subdivision two of this section, shall be guilty of
a misdemeanor punishable as set forth in section seventy-three-b of this
article.
5. The license of any master, pilot, engineer, or joint pilot and
engineer who operates a public vessel in contravention of any of the
requirements of this section may be subject to the suspension or
revocation of his or her license pursuant to section sixty-four-a of
this article.
Fire pump. Every public vessel permitted by her certificate to
carry one hundred passengers or more, shall be provided with a fire pump
or other equivalent apparatus for throwing water, the same to be at all
times during the navigation of such vessel, kept ready for immediate
use, having hose of suitable size and sufficient strength to stand a
pressure of at least seventy-five pounds to the square inch, and of a
length to be specified by the inspector. The inspector may require the
installation of an approved fixed fire extinguishing system as defined
in subdivision five of section sixty-seven in lieu of, or in addition
to, the fire pump required by this section.
Identification number of vessel. Every public vessel subject to
the provisions of this chapter shall be registered and display the
identification number assigned as set forth in section twenty-two
hundred fifty-one of the vehicle and traffic law. In addition to the
number assigned, each public vessel shall display the letters "PV" not
more than six inches above or below the identification number. The
letters "PV" shall be not less than five inches in height and maintained
in a legible condition so that the letters, "PV", are readily
discernible during daylight hours at a distance of two hundred feet. It
shall be the duty of every owner to register and display numbers as
herein indicated. Violation of this section shall be a violation
punishable by a fine of not less than twenty-five nor more than one
hundred dollars.
Number of passengers. It shall not be lawful to take on board of
any public vessel a greater number of passengers than the number allowed
in the certificate of inspection and for every violation of this
provision, the master, pilot, joint pilot and engineer or owner shall be
guilty of a misdemeanor punishable as set forth in section
seventy-three-b of this article.
Unauthorized boarding of vessels. (1) It shall be unlawful for
any person except a pilot or public officer to board or attempt to
board, a vessel arriving in the port of New York before such vessel
shall have been made fast to the wharf, without first obtaining leave
from the master or person having charge of such vessel, or leave in
writing from her owners or agents.
(2) It shall be unlawful for any person to board or attempt to board
any vessel arriving in or lying or being in the port of New York, with
intent to supply liquors by sale, gift or otherwise, directly or
indirectly, to any member of the crew employed on board of such vessel.
(3) It shall be unlawful for any person having boarded any vessel in
the port of New York, to neglect or refuse to leave such vessel after
having been ordered to do so by the master or person in charge of such
vessel.
(4) The word "vessel" as used in this section shall include vessels by
whatever power propelled.
(5) Any person violating any of the provisions of this section shall
be deemed guilty of a misdemeanor punishable as set forth in section
seventy-three-b of this article.
Manning of public vessels. 1. All public vessels while under way
under their own power, shall be in charge of a licensed master, pilot,
engineer, or joint pilot and engineer. Anyone operating a public vessel
without a license and any owner who permits the operation of a public
vessel by a person who does not possess a valid license or temporary
permit, in full force and effect as master, pilot, engineer or joint
pilot and engineer shall be guilty of a misdemeanor punishable as set
forth in section seventy-three-b of this article.
2. It shall be unlawful to operate a public vessel with less than the
required crew members as specified in the certificate of inspection or
temporary permit. Any person who operates a public vessel, and any owner
of a public vessel who permits a person to operate such vessel, in
contravention of this requirement, shall be guilty of a misdemeanor
punishable as set forth in section seventy-three-b of this article. In
addition, the license of any master, pilot, engineer, or joint pilot and
engineer who operates a public vessel in contravention of the crew
requirements as contained in the certificate of inspection may be
subject to the suspension or revocation of his or her license pursuant
to section sixty-four-a of this article.
Inability to provide licensed officer. If the owner or master of
a public vessel is unable to obtain the services of a licensed officer,
the inspector shall be notified and the deficiency may be temporarily
supplied, if the inspector approves, until the services of a licensed
officer can be obtained.
Repairs and modifications. 1. Before any repair or modification
is made to the structure or engineering plant of a public vessel, or any
repair or modification is made that may affect the stability,
seaworthiness or safe operation of a public vessel, or in the event that
the owner of a public vessel becomes aware of any such repair or
modification, the owner shall notify the inspector of the repair or
modification or proposed repair or modification in writing. The
inspector shall be authorized to determine whether a proposed repair or
modification may be made, whether inspection of the vessel shall be
required before any proposed repair or modification is made, or whether
inspection should be made after repair or modification. The inspector
shall also be authorized to determine whether the vessel may be operated
pending inspection, or whether the vessel may only be operated after
inspection, or whether it may not be operated. The inspector may impose
conditions on any such repair or modification, inspection and operation
taking into consideration the nature of the proposed or existing repair
or modification, the condition of the vessel and any other factors the
inspector deems relevant to the stability, seaworthiness and safe
operation of such vessel. The owner shall comply with the determination
of the inspector.
2. An owner who fails to give notification as required by this
section, or who modifies or permits the repair or modification of a
public vessel in contravention of the requirements of this section,
shall be guilty of a violation punishable as set forth in section
seventy-three-c of this article.
3. A public vessel which the inspector has directed to be inspected
prior to operation pursuant to the provisions of this section shall not
be operated upon the navigable waters of the state if such vessel has
not been inspected. A public vessel which the inspector has directed not
to be operated pursuant to the provisions of this section shall not be
operated upon the navigable waters of the state. An owner who permits
the operation of a public vessel in contravention of this section shall
be guilty of a misdemeanor punishable as set forth in seventy-three-b of
this article, and the certificate of inspection of said public vessel
may, in the discretion of the inspector, be suspended until such time as
the inspector determines that said vessel is stable, seaworthy and safe.
Loss of life by misconduct of officers. Every master or other
person employed on any public vessel, by whose misconduct, negligence or
inattention to his or her duties on such vessel, the life of any person
is lost, and every owner or charterer through whose fraud, neglect,
misconduct or violation of law, the life of any person is lost, shall be
guilty of a class E felony.
Certificate of inspection. The inspector, if satisfied that a
public vessel is in all respects safe and conforms to the requirement of
this chapter, shall make and subscribe duplicate certificates setting
forth the name and number of the vessel, its age, the date of
inspection, the name of the owner, the number of licensed officers and
crew necessary to manage the vessel with safety, equipment required and
any special restrictions or remarks pertaining to the operation of the
vessel and the number of passengers she can safely carry, and, if a
steam vessel, the age of the boiler and the pressure of steam she is
authorized to carry. One of said certificates shall be kept posted in
some conspicuous place on the vessel to be designated by the inspector
and the other copy shall be kept by the inspector and by him recorded in
a book to be kept for that purpose. If the inspector refuses to grant a
certificate of approval, he shall make a statement in writing, giving
his reasons for such refusal, and deliver the same to the owner or
master of the vessel. The posting of certificates of inspection shall
not be required on vessels of less than ten tons burden. However said
certificates must be aboard whenever the vessel is in operation.
Suspension of certificate of inspection; penalty for operating
a vessel without a certificate of inspection or during suspension. The
inspector may suspend a certificate of inspection issued pursuant to the
provisions of this article upon satisfactory proof that operation of the
vessel poses a risk to public safety. Prior to suspending the
certificate of inspection, the inspector shall give written notice of
the defects to the owner and describe how those defects pose a risk to
public safety. The inspector may suspend the certificate of inspection
until such time as the inspector is satisfied that operation of the
vessel does not pose a risk to public safety. An owner who permits the
operation of a vessel which has not been issued a certificate of
inspection or whose certificate of inspection has been suspended shall
be guilty of a misdemeanor punishable as set forth in section
seventy-three-b of this article for each day of operation of the vessel
with a suspended certificate of inspection.
Licenses. Every person employed as a master, pilot, engineer or
joint pilot and engineer, on board of a public vessel, shall be examined
by the inspector as to his qualifications, and if the inspector is
satisfied therewith, he shall grant him a license for the term of one
year. In a proper case, the license may permit and specify that the
master may act as pilot, and in case of small vessels may also act as
joint pilot and engineer. The license shall be framed under glass and
posted in some conspicuous place on the vessel on which he may act,
provided that on vessels of less than ten tons, the license must be
carried but need not be posted. Whoever acts as master, pilot, engineer,
or joint pilot and engineer, without having first received such license,
except as in this article otherwise specified, shall be guilty of a
misdemeanor. An applicant for license as master, pilot, or engineer,
must be at least twenty-one years of age. An applicant for a license as
joint pilot and engineer must be at least eighteen years of age.
Suspension and revocation of licenses. 1. The inspector may
suspend or revoke any license of master, pilot, engineer or joint pilot
and engineer, issued pursuant to the provisions of this article, upon
satisfactory proof of recklessness, carelessness, intemperance,
incompetence, wilful dereliction of duty or wilful disobedience of any
rule or regulation duly made and promulgated by the commissioner.
2. It shall be the duty of the inspector to receive and make
determination on complaints duly made in writing against any master,
pilot, engineer, or joint pilot and engineer licensed pursuant to the
provisions of this article where it appears that the license of such
person may be subject to suspension or revocation under this section.
3. Before any person shall be proceeded against on any complaint and
before any license may be revoked or suspended, such person shall be
notified, in writing, signed by the inspector, to appear before the
inspector. Such notice shall specify the nature and substance of such
complaint and shall be served personally at least five days before the
time fixed for appearance. The inspector may postpone or adjourn such
hearing from time to time.
4. The inspector, at the request of either the complaining or
defending party, shall issue subpoenas to compel the attendance of
witnesses before the inspector in all cases which he is empowered to
hear and determine under this article. The inspector shall examine on
oath, to be administered by him, all such witnesses. Each person
subpoenaed as a witness shall be entitled to the same witness fees and
be subject to the same penalties and punishments for disobedience, or
for false testimony, as would apply in a civil suit at law, in a court
of record.
5. Whenever the license of any master, pilot, engineer or joint pilot
and engineer is suspended or revoked he shall forthwith deliver up his
license to the inspector. The inspector shall retain any such suspended
license until the time of suspension shall expire. Any such person who
shall refuse to deliver up such suspended or revoked license shall be
subject to a penalty of one hundred dollars for each day following such
refusal.
Fees for vessel inspections and for the issuance of licenses.
The owner of a public vessel, inspected and licensed as provided in this
chapter, shall pay to the inspector, for each vessel not over ten tons
burden, twenty dollars; for each vessel over ten and not over twenty
tons burden, thirty dollars; for each vessel over twenty and not over
fifty tons burden, forty dollars; for each vessel over fifty and not
over one hundred tons burden, fifty dollars; and for each vessel over
one hundred tons burden, one hundred dollars. Each person licensed, as
provided for in this chapter, shall pay twenty dollars for each original
license and ten dollars for each renewal thereof. All moneys received by
the office for examinations, licenses or renewals of licenses, shall be
deposited into the "I love NY waterways" boating safety fund established
pursuant to section ninety-seven-nn of the state finance law.
Inflammable or explosive articles prohibited. 1. No loose hay,
loose cotton, or loose hemp, camphene, nitro-glycerine, naptha, benzine,
benzol, coal-oil, crude petroleum or other like explosive burning fluids
or dangerous articles, shall be carried as freight or used as stores on
any public vessel carrying passengers licensed under this chapter,
except that refined petroleum which will not ignite at a temperature of
less than one hundred and ten degrees Fahrenheit may be carried on the
main deck of any public vessel, provided the barrels or cases containing
such oil are fully covered with a tarpaulin. But nothing in this section
shall be construed to prevent any vessel utilizing petroleum, petroleum
products or other mineral oils as a source of motive power, from
carrying for its own use, in reasonable quantities, petroleum, petroleum
products and oils in metal tanks, properly protected, vented and
located, such tanks, their piping, equipment and manner of installation
to be subject to the approval of the inspector, and such approval when
given shall be indorsed on the certificate of inspection issued to such
vessel, nor shall the provisions of this section prohibit the
transportation by vessels of gasoline or other petroleum products when
carried in the tanks of motor vehicles using gasoline or petroleum
products as a source of motive power, provided that all fire in such
vehicles shall be extinguished and their engines and motors stopped
immediately after boarding such vessels, and no fire shall be lighted
nor the engine or motor of such vehicle shall be started until
immediately before such vehicle shall leave the vessel.
2. It shall be unlawful for the operator of any marina providing
facilities for sale of fuel to vessels, to maintain fuel pumps on the
premises unless equipped as may be necessary for the arresting of static
electricity. All motors and generators on the vessel being refueled
shall be turned off during the refueling process.
A violation of the provisions of this section shall constitute a
violation punishable as set forth in section seventy-three-c of this
article.
Public vessel equipment. 1. Buoyant apparatus. Every public
vessel of over fifty tons burden, navigating more than one mile from
shore, shall carry in addition to other equipment required by this
section, sufficient buoyant apparatus for not less than twenty per cent
of all persons on board. Buoyant apparatus shall mean and include life
rafts, or life floats, of a type approved by the commissioner. Such
apparatus shall be equipped with oars or paddles and other equipment as
specified by the inspector. All buoyant apparatus shall be stowed in
such a manner that it is easily accessible and capable of being launched
into the waters in case of need.
2. Personal flotation devices. Every public vessel engaged in the
transportation of passengers shall have on board a wearable personal
flotation device for each passenger the vessel is certified to carry,
and one additional wearable personal flotation device for each member of
the crew. The personal flotation devices shall be of a type approved by
the United States coast guard for use on vessels carrying passengers for
hire. The personal flotation devices shall be in serviceable condition
and kept in readily accessible places, having the approval of the
inspector, for immediate use in case of emergency. The location of the
personal flotation devices shall be indicated by legible printed
notices. It shall be the duty of the inspector to ascertain that every
personal flotation device is as herein required.
3. Ventilation. The inspector shall require that machinery and other
enclosed spaces be adequately ventilated by means of free or forced air
ventilation. The inspector shall require that all installed fuel tanks
be properly vented.
4. Portable fire extinguishers. The inspector shall require that
public vessels carry such portable fire extinguishers as he deems
necessary and to specify their type, size and location on the vessel,
dependent upon the type of vessel, the number of passengers and the
amount and character of freight carried and other fire hazards.
5. Fixed fire extinguishing systems. Fixed fire extinguishing systems,
hereinafter termed "fixed systems", are considered to be total flooding
systems using carbon dioxide as the extinguishing agent and having
components fixed in position. The inspector shall require the
installation of a fixed system on every passenger carrying public vessel
which has enclosed engine and fuel tank compartments.
6. Communications and navigational equipment. Every public vessel
certified to carry more than ten passengers shall be equipped with
either a very high frequency marine radio or operational cellular phone
which, considering the location of the vessel's operations, the vessel's
range, the availability of persons or services to receive and respond to
the vessel's transmissions when the vessel is in use and other relevant
factors the inspector, in his or her discretion, determines to be a
reliable means for such vessel to call for any necessary aid or
assistance. Every public vessel certified to carry more than sixty-five
passengers shall also be equipped with functional radar.
7. Marking of equipment. All equipment, unless otherwise directed by
the inspector, shall be legibly marked with the name or registration
number of the public vessel on which it is carried.
8. The commissioner is hereby authorized to make rules and regulations
pertaining to equipment on public vessels. In framing such rules and
regulations the commissioner shall, as far as practicable, be governed
by the rules and regulations of the United States coast guard prescribed
for the regulation of commercial vessels.
Investigations by inspector; penalties; reports. The inspector
upon order or pursuant to direction of the commissioner shall
investigate all violations and charges of violations of the provisions
of this article which are applicable to public vessels. Should the
investigations disclose that a person has sustained bodily injury
through accident caused as the direct result of any such violation, he
shall file with the district attorney of the county in which such
violation occurred, a statement of the nature of the violation, the
injury sustained and the names of the persons involved and of the
witnesses thereto. Any master, owner, or other person violating any of
such provisions, in addition to any other punishment prescribed by this
chapter or other law, shall forfeit to the people of the state a sum of
not less than twenty-five nor more than one hundred dollars to be fixed
by the court or justice for each and every offense; every violation
shall be a separate and distinct offense, and, in case of a continuing
violation, every day's continuance thereof shall be deemed to be a
separate and distinct offense.
Seizure of public vessels. Whenever the inspector shall find
after investigation or have reasonable cause to believe that any public
vessel is being operated in contravention of the provisions of this
article, or is being operated by an unlicensed person by and with the
consent of the owner, he may seize and impound such vessel until the
termination of the action against the owner to recover the penalty
therefor and thereafter until the penalty imposed by the court or
justice has been paid. Such seizure and impoundment of any public vessel
by the inspector shall be at the owner's risk. Within fifteen days after
the entry of judgment by the court or justice, the inspector may, unless
the judgment be sooner paid and in lieu of proceeding by body execution,
sell the public vessel so impounded at public sale upon notice to the
owner. Notice of the sale, specifying the date, place and hour of the
sale shall be served upon the owner of the public vessel personally or
by registered mail addressed to him at his last known post-office
address, and published not less than ten days before the sale. The
publication of notice of sale shall be made in a newspaper or newspapers
designated by the commissioner having general circulation in the county
where the public vessel was seized and impounded. The proceeds of sale
shall first be applied in payment of the judgment and expenses of sale
and the remainder shall be paid to the owner of the public vessel or
other person lawfully entitled thereto. If the commissioner is unable to
determine by reasonable investigation the person or persons entitled to
the remainder of the proceeds of sale, he may deposit the same with the
supreme court in the third judicial district for final determination
thereon.
PART 2-A Petroleum-bearing Vessels
Minimum conditions for petroleum-bearing vessels in certain
areas; tanker-avoidance zones. 1. The commissioner of environmental
conservation in consultation with the petroleum-bearing vessel advisory
commission established in section seventy-one of this article, the
United States Coast Guard, the board of commissioners of pilots and
appropriate officials of any state or country with concurrent
jurisdiction over water bodies which might be affected, through rule and
regulation may establish standards setting forth:
(a) the minimum conditions under which petroleum-bearing vessels as
defined in section one hundred seventy-two of this chapter may enter or
move upon the navigable waters of the state and any tidewaters bordering
on or lying within the boundaries of Nassau and Suffolk counties. Such
conditions may include, but not be limited to, visibility, the tide and
wind conditions and weather; and
(b) the minimum conditions under which petroleum-bearing vessels may
enter or leave any major facility, port or harbor. Such conditions may
include, but not be limited to, visibility, the tide and wind conditions
and weather.
2. The commissioner of environmental conservation may, in consultation
with the petroleum-bearing vessel advisory commission established in
section seventy-one of this article, the United States Coast Guard, the
board of commissioners of pilots and appropriate officials of any state
or country with concurrent jurisdiction over water bodies which might be
affected, establish tanker-avoidance zones, where it shall be unlawful
for petroleum-bearing vessels as defined in section one hundred
seventy-two of this chapter, to enter or move upon the navigable waters
of the state or any tidewaters bordering on or lying within the
boundaries of Nassau and Suffolk counties.
Minimum conditions for petroleum-bearing vessels on the Hudson
river; tanker-avoidance zones. 1. The commissioner of environmental
conservation in consultation with the United States Coast Guard, the
board of commissioners of pilots, the department of state, at least one
licensed Hudson river pilot and appropriate officials of any state which
might be affected, may establish guidelines setting forth:
(a) the minimum conditions under which petroleum-bearing vessels as
defined in section one hundred seventy-two of this chapter may enter or
move upon the navigable waters of the Hudson river. Such conditions may
include, but not be limited to: (i) visibility; (ii) the tide and wind
conditions; and (iii) weather;
(b) the minimum conditions under which petroleum-bearing vessels may
enter or leave any major facility, port or harbor along the Hudson
river. Such conditions may include, but are not be limited to: (i)
visibility; (ii) the tide and wind conditions; and (iii) weather;
(c) the establishment of tanker-avoidance zones, where it shall be
unlawful for petroleum-bearing vessels as defined in section one hundred
seventy-two of this chapter, to enter, move or anchor upon the navigable
waters of the Hudson river, except in cases of great emergency. Such
tanker-avoidance zones may be based upon physical and environmental
conditions which may include, but are not limited to: (i) navigational
hazards; (ii) environmental conditions; (iii) the existence of
designated significant coastal fish and wildlife habitats; (iv)
proximity to waterfront communities; (v) disproportionate impacts on
communities; and (vi) federally or state identified environmental
remediation sites; and may consider an affected community's waterfront
revitalization plan or comprehensive plan and the environmental justice
communities impacts.
2. The commissioner of environmental conservation following
consultation with the United States Coast Guard, the board of
commissioners of pilots, the department of state, the office of parks,
recreation and historic preservation, at least one licensed Hudson river
pilot and appropriate officials of any state which might be affected,
shall submit a report to the governor, the temporary president of the
senate, and the speaker of the assembly within one hundred twenty days
of the effective date of this section regarding recommendations on
plans, policies and programs affecting petroleum-bearing vessels on the
navigable waters of the Hudson river, as well as on any proposed
rulemaking from the United States Coast Guard which would impact the
Hudson river.
Petroleum-bearing vessel advisory commission. 1. Creation of the
petroleum-bearing vessel advisory commission. The commissioner of
environmental conservation shall establish a petroleum-bearing vessel
advisory commission to make recommendations on plans, policies and
programs affecting petroleum-bearing vessels. Such advisory commission
shall be composed of nine members to be appointed by the commissioner.
The chairperson shall be designated by the commissioner of environmental
conservation. All members of the commission shall have knowledge of and
experience in the pilotage of commercial vessels. At least three members
shall be licensed pilots by the state of New York, and at least two
members shall be pilots licensed by states contiguous to New York or by
Canada and at least two members shall be experienced in the navigation
and pilotage of tug boats and petroleum-bearing barges. Appointments to
the advisory commission shall be made no later than the first day of
January next succeeding the date on which this section will have become
a law.
2. Meetings of the advisory commission. The advisory commission shall
meet at least annually.
3. Duties of the advisory commission. The advisory commission shall
have the following powers and duties:
(a) to advise the commissioner of environmental conservation in
establishing minimum conditions for petroleum-bearing vessels in certain
waters, pursuant to section seventy of this article.
(b) to advise the commissioner of environmental conservation in
establishing tanker-avoidance zones, pursuant to section seventy of this
article.
4. Term of appointment. All members of the advisory commission shall
serve terms of three years.
5. State assistance. The commissioner of environmental conservation
and all state agencies shall make any and all documents readily
available to the advisory commission which are needed to properly and
thoroughly carry out its responsibilities. The commissioner of
environmental conservation shall also make available to the advisory
commission such staff assistance reasonably necessary to allow the
advisory commission to carry out its duties and responsibilities.
PART 3 Pleasure Vessels
Liveries; safety regulations; penalty. 1. No livery operator
shall knowingly lease, hire or rent a vessel to any person:
(a) When the number of persons using the vessel shall exceed the
number deemed to constitute a maximum safety load for said vessel,
according to its capacity plate or industry-accepted standards.
(b) When the manufacturer's rated horsepower of the motor exceeds the
capacity of the vessel, making the vessel unsafe to operate.
(c) When the vessel does not contain the equipment required by its
respective class, as provided by section forty.
1-a. Notwithstanding subdivision one of section forty-nine of this
article, a livery may lease, hire or rent a mechanically propelled
vessel, except a personal water craft or specialty prop craft, to a
person who is not the holder of a boating safety certificate if:
(a) the person is eighteen years or older;
(b) the operator of such livery or his or her designated agent, is the
holder of a boating safety certificate, and prior to permitting the use
by such person of the vessel explains and demonstrates to such person by
video or actual in water demonstration the operation of such vessel, and
the use and location of such vessel's safety equipment;
(c) such person, after receiving the explanation and demonstration
required pursuant to paragraph (b) of this subdivision, demonstrates to
the livery operator or the livery operator's designated agent the
ability to operate such vessel and use the applicable safety equipment;
(d) such person presents genuine proof of identification and age to
the livery operator;
(e) the livery operator or the livery operator's designated agent, at
the time of the leasing, hiring, or renting, records the name, address,
and age of the operator of the leased, hired or rented vessel. Such
records shall be maintained for a period of not less than one year; and
(f) the vessel is not leased, hired or rented to the same person for a
period exceeding sixty days.
2. Any person convicted of violating this section shall be guilty of a
violation punishable by a fine of not less than twenty-five nor more
than one hundred dollars.
Operation of pleasure vessels on Round Island lake, Orange
county. Pleasure vessels as defined in this chapter, equipped with
detachable outboard motors or permanent inboard motors, except vessels
propelled by electric motors of not over one-fourth rated horsepower,
shall not be operated at any time on the waters of Round Island lake,
Orange county.
Operation of vessels on the inland waters of Chautauqua
county. No water craft shall pass the stern of a boat being used for
trolling less than two hundred feet from the stern of such boat on the
inland lakes of Chautauqua county.
Towing of persons. 1. No person shall operate a vessel for
towing a person unless there is upon such vessel a person, other than
the operator, of at least ten years of age, in a position to observe the
progress of the person being towed.
2. No person shall be towed or use or operate a vessel to tow a person
during the period from sunset to sunrise provided, however, that the
provisions of this subdivision shall not apply to a paid performer
engaged in a professional exhibition.
3. No person shall be towed by a vessel without wearing a securely
fastened United States Coast Guard approved personal flotation device
and no person shall use or operate a vessel to tow a person not in
compliance with this subdivision; provided, however, that the provisions
of this subdivision shall not apply to a paid performer engaged in a
professional exhibition.
4. The provisions of subdivision one of this section shall not apply
to a vessel operated or controlled by the person being towed by such
vessel, the design of which makes no provision for carrying an operator
or observer on board. Such a vessel may not, however, be operated unless
(a) it is registered and an assigned number permanently displayed
thereon in accordance with sections twenty-two hundred fifty-one and
twenty-two hundred fifty-four of the vehicle and traffic law; (b) it is
equipped with an automatic shut-off mechanism activated whenever the
operator is separated from the towing device; (c) it is equipped with a
fire extinguisher and flame arrester attached to the motor; (d) the
motor compartment is properly ventilated; (e) all persons being towed
are wearing a securely fastened United States Coast Guard approved
personal flotation device at all times of operation; and (f) other
safety provisions required by section forty of this article, except the
requirements of subdivisions two and three thereof relating to the use
of whistles and anchors.
4-a. No person shall operate or manipulate any vessel or device for
towing a person in such a way as to cause such device or any person
utilizing such device to collide with or strike any object or person.
The provisions of this section do not apply to collisions of two or more
persons or devices being towed behind the same boat nor to collisions
with ski jumps, buoys and similar objects normally used in competitive
or recreational water skiing.
5. No person shall operate or manipulate a device for towing a person
or be towed in a reckless or negligent manner so as to endanger the
life, limb, or property of any person.
6. Any person violating any provision of this section shall be guilty
of a violation punishable as set forth in section seventy-three-c of
this article.
7. For the purposes of this section: (a) to tow a person shall mean
the towing of a person, including utilizing a device, on the navigable
waters of the state or any tidewaters bordering on or lying within the
boundaries of Nassau and Suffolk counties, but shall not include the
towing of persons in a vessel to which assistance is being rendered; and
(b) a device shall include, but not be limited to, water skis, a tube, a
surfboard, a tow rope, an aquaplane, a parasail, or a related device.
Regulations of personal watercraft and specialty prop-craft.
1. Personal watercraft and specialty prop-craft. a. No person shall
operate a personal watercraft or a specialty prop-craft unless each
person riding on such vessel is wearing a securely fastened United
States Coast Guard approved personal flotation device.
b. No person shall operate a personal watercraft or a specialty
prop-craft unless such vessel is equipped and fitted with a United
States Coast Guard approved device for arresting carburetor backfire.
c. No person shall operate a personal watercraft or a specialty
prop-craft unless such vessel is equipped with:
(i) at least two ventilators fitted with cowls or their equivalent for
the purpose of properly and efficiently ventilating the bilges of every
engine and fuel tank compartment in order to remove any inflammable or
explosive gases provided, however, if the vessel is so constructed as to
have the greater portion of the bilges under the engine and fuel tanks
open and exposed to the natural atmosphere at all times such vessel need
not be required to be fitted with such ventilators; and
(ii) an efficient sound producing mechanical appliance, except sirens,
capable of producing a blast of two seconds or more in duration and of
such strength as to be heard plainly for a distance of at least one-half
mile in still weather; and
(iii) a fluorescent-orange distress flag which shall be a minimum of
one foot square or other appropriate United States Coast Guard approved
visual distress signal.
d. Any person operating a personal watercraft or a specialty
prop-craft equipped by the manufacturer with a lanyard type engine
cut-off switch shall attach such lanyard to his or her person, clothing,
or personal flotation device as is appropriate for the specific vessel.
e. No person shall operate a personal watercraft or a specialty
prop-craft at any time from sunset to sunrise.
f. No person shall operate a personal watercraft or a specialty
prop-craft within five hundred feet of any designated bathing area,
except in bodies of water where the opposing shoreline is less than five
hundred feet from such designated area and in accordance with speed
regulations and restrictions as provided by local law or ordinance but
in no event at a speed in excess of ten miles per hour, provided,
however, that nothing contained in this subdivision shall be construed
to prohibit the launching of such vessel from designated launching areas
or sites.
g. Every personal watercraft and specialty prop-craft shall at all
times be operated in a reasonable and prudent manner. Maneuvers which
unreasonably or unnecessarily endanger life, limb, or property,
including, but not limited to, (i) weaving through congested vessel
traffic, or (ii) jumping the wake of another vessel unreasonably or
unnecessarily close to such other vessel or when visibility around such
other vessel is obstructed, or (iii) swerving at the last possible
moment to avoid collision shall constitute reckless operation of a
vessel, as provided in section forty-five of this article.
h. The provisions of this section shall not apply to any performer
engaged in a professional exhibition or any person preparing to
participate or participating in a regatta, race, marine parade,
tournament, or exhibition authorized under section thirty-four of this
chapter.
i. The provisions of this section shall apply to the operation of a
personal watercraft and a specialty prop-craft on any waterway or body
of water located within New York state and not privately owned and any
part of any body of water adjacent to New York state over which the
state has territorial jurisdiction, including all tidewaters bordering
on and lying within the boundaries of Nassau and Suffolk counties.
j. The provisions of section forty of this chapter shall not apply to
personal watercraft or specialty prop-craft.
2. Liveries. Notwithstanding the provisions of section forty-nine or
seventy-one-d of this chapter, no livery shall lease, hire, or rent a
personal watercraft or a specialty prop-craft to any person unless:
(a) such person is sixteen years of age or older.
(b) the operator of such livery, or his designated agent, prior to
permitting the use by such person of such personal watercraft or
specialty prop-craft, explains and demonstrates to such person by video
or actual in water demonstration the operating procedure of such
personal watercraft or specialty prop-craft and the use of such vessel's
safety equipment;
(c) such person, after receiving the explanation and demonstration
required pursuant to paragraph (b) of this subdivision, demonstrates to
such livery operator or to such designated agent the ability to operate
such vessel and use the applicable safety equipment;
(d) such person has presented genuine proof of identification and age;
and except as provided in paragraph (f) of this subdivision, has
demonstrated compliance with section forty-nine of this article, to such
livery operator or the livery operator's designated agent prior to the
time of leasing, hiring or renting such vessel;
(e) such livery operator or his designated agent, at the time of such
leasing, hiring or renting, records the name, address and age of the
user of the leased, hired or rented vessel, and the model, year, name of
manufacturer, and state registration or federal documentation numbers of
the leased, hired or rented vessel. Such records shall be maintained for
a period of not less than one year; and
* (f) notwithstanding the provisions of paragraph (d) of this
subdivision and subdivision one-a of section forty-nine of this article,
a person over eighteen years of age may operate such personal watercraft
or specialty prop-craft without the certificate required pursuant to
section forty-nine of this article when such operation is restricted by
the operator of such livery, or the livery operator's designated agent,
to a specified area, no part of which shall be more than twenty-five
hundred feet from the livery location, or, if removed from the livery
location, not more than five hundred feet from the livery operator or
agent assigned by the livery operator to supervise such operation and
such personal watercraft or specialty propcraft and/or the personal
flotation device of the operator is clearly marked in such a manner as
to be distinguishable by the operator of such livery or the livery
operator's designated agent within the permitted areas of operation.
* NB Repealed January 1, 2027
3. Penalties for violation. (a) Every person convicted of a violation
of this section, other than a conviction for a violation of subdivision
two of this section, shall for a first conviction thereof be punished by
a fine of not less than fifty dollars nor more than two hundred dollars;
for a conviction of a second violation, both of which were committed
within a period of twenty-four months, such person shall be punished by
a fine of not less than one hundred dollars nor more than four hundred
dollars; upon a conviction of a third or subsequent violation, all of
which were committed within a period of twenty-four months, such person
shall be punished by a fine of not less than two hundred dollars nor
more than five hundred dollars and the revocation of the registration of
the personal watercraft.
(b) Every person convicted of a violation of subdivision two of this
section shall for a first conviction thereof be punished by a fine of
not less than one hundred dollars nor more than two hundred dollars; for
a conviction of a second violation, both of which were committed within
a period of twenty-four months, such person shall be punished by a fine
of not less than two hundred dollars nor more than four hundred dollars;
upon a conviction of a third or subsequent violation, all of which were
committed within a period of twenty-four months, such person shall be
punished by a fine of not less than four hundred dollars nor more than
eight hundred dollars.
PART 3-A Penalties
Misdemeanors. Every person convicted of a misdemeanor pursuant
to any of the provisions of this chapter for which another penalty is
not provided shall for a first conviction thereof be punished by a fine
of not less than two hundred fifty nor more than five hundred dollars or
by a period of imprisonment of not more than thirty days or by both such
fine and imprisonment; for a conviction of a second violation, both of
which were committed within a period of twenty-four months, such person
shall be punished by a fine of not less than five hundred nor more than
one thousand five hundred dollars or by a period of imprisonment of not
more than sixty days or by both such fine and imprisonment; upon a
conviction of a third or subsequent violation, all of which were
committed within a period of twenty-four months, such person shall be
punished by a fine of not less than one thousand five hundred nor more
than two thousand five hundred dollars or by a period of imprisonment of
not more than one hundred twenty days or by both such fine and
imprisonment.
Violations. 1. Any person who violates any of the provisions
of this article or any local law, ordinance, order, rule or regulation
adopted pursuant to this article, shall be guilty of a violation unless
such conduct is declared to be a misdemeanor or a felony pursuant to
this chapter or any other law of this state.
2. Every person convicted of a violation for a violation of any of the
provisions of this article or of any ordinance, order, rule or
regulation adopted pursuant to this article for which another penalty is
not provided shall for a first conviction thereof be punished by a fine
of not less than one hundred nor more than two hundred fifty dollars or
by imprisonment for not more than seven days or by both such fine and
imprisonment; for a conviction of a second violation, both of which were
committed within a period of twenty-four months, such person shall be
punished by a fine of not less than two hundred fifty nor more than five
hundred dollars or by imprisonment of not more than fifteen days or by
both such fine and imprisonment; upon a conviction for a third or
subsequent violation, all of which were committed within a period of
twenty-four months, such person shall be punished by a fine of not less
than five hundred nor more than one thousand dollars or by imprisonment
for not more than thirty days or by both such fine and imprisonment.
PART 4 Non-resident Owners and Operators
Service of summons and complaint on non-residents. 1. The use,
operation, navigation or maintenance by a non-resident, or in his
business, of a vessel in waters of this state; or owned by a
non-resident and used, operated, navigated or maintained with his
permission in waters of this state, shall be deemed equivalent to an
appointment by such non-resident of the secretary of state to be his
true and lawful attorney upon whom may be served the summons and
complaint in any action against him, growing out of any accident or
collision in which such non-resident may be involved while using,
operating, navigating or maintaining such vessel in waters of this
state, or in which such vessel may be involved while being used,
operated, navigated or maintained in such waters in the business of the
non-resident, or with the permission, expressed or implied, of such
non-resident, and such use, operation, navigation or maintenance shall
be deemed a signification of his agreement that any such summons and
complaint against him which is so served shall be of the same legal
force and validity as if served upon him personally within the state and
the territorial jurisdiction of the court from which the summons issues,
and that such appointment of the secretary of state shall be irrevocable
and binding upon his executor or administrator. Where such non-resident
has died prior to the commencement of an action brought pursuant to this
section, service of summons and complaint shall be made on the executor
or administrator of such non-resident in the same manner and on the same
notice as is provided in the case of the non-resident himself. Where an
action has been duly commenced under the provisions of this section
against a non-resident who dies thereafter, the court must allow the
action to be continued against his executor or administrator upon motion
with such notice as the court deems proper.
2. A summons and complaint in an action described in this section may
issue in any court in the state having jurisdiction of the subject
matter and be served as hereinafter provided. Service of such summons
and complaint shall be made by mailing a copy thereof to the secretary
of state at his office in the city of Albany, or by personally
delivering a copy thereof to one of his regularly established offices,
with a fee of five dollars, and such service shall be sufficient service
upon such non-resident provided that notice of such service and a copy
of the summons and complaint are forthwith sent by or on behalf of the
plaintiff to the defendant by registered mail with return receipt
requested. The plaintiff shall file with the clerk of the court in which
the action is pending, or with the judge or justice of such court in
case there be no clerk, an affidavit of compliance herewith, a copy of
the summons and complaint, and either a return receipt purporting to be
signed by the defendant or a person qualified to receive his registered
mail, in accordance with the rules and customs of the post office
department; or, if acceptance was refused by the defendant or his agent,
the original envelope bearing a notation by the postal authorities that
receipt was refused, and an affidavit by or on behalf of the plaintiff
that notice of such mailing and refusal was forthwith sent to the
defendant by ordinary mail. Where the summons is mailed to a foreign
country, other official proof of the delivery of the mail may be filed
in case the post-office department is unable to obtain such a return
receipt. The foregoing papers shall be filed within thirty days after
the return receipt or other official proof of delivery or the original
envelope bearing a notation of refusal, as the case may be, is received
by the plaintiff. Service of process shall be complete when such papers
are filed. The return receipt or other official proof of delivery shall
constitute presumptive evidence that the summons mailed was received by
the defendant or a person qualified to receive his registered mail; and
the notation of refusal shall constitute presumptive evidence that the
refusal was by the defendant or his agent. Service of such summons also
may be made by mailing a copy thereof to the secretary of state at his
office in the city of Albany, or by personally delivering a copy thereof
to one of his regularly established offices, with a fee of five dollars,
and by delivering a duplicate copy thereof, with the complaint annexed
thereto, to the defendant personally without the state by a resident or
citizen of the state of New York or a sheriff, under-sheriff,
deputy-sheriff or constable of the county or other political subdivision
in which the personal service is made, or an officer authorized by the
laws of this state, to take acknowledgments of deeds to be recorded in
this state, or an attorney and/or counselor at law, solicitor, advocate
or barrister duly qualified to practice in the state or country where
such service is made, or by a United States marshal or deputy United
States marshal. Proof of personal service without the state shall be
filed with the clerk of the court in which the action is pending within
thirty days after such service. Personal service without the state is
complete when proof thereof is filed. The court in which the action is
pending may order such extension as may be necessary to afford the
defendant reasonable opportunity to defend the action.
3. Service of summons on residents who depart from state and on
residents' executors or administrators who are nonresidents or who
depart from state. The provisions of section seventy-four of this
chapter shall also apply (a) to a resident who departs from the state
subsequent to the accident or collision and remains absent therefrom for
thirty days continuously, whether such absence is intended to be
temporary or permanent, and to any executor or administrator of such
resident, and (b) to an executor or administrator of a resident if such
executor or administrator is a nonresident or if, being a resident, he
departs from the state and remains absent therefrom for thirty days
continuously, whether such absence is intended to be temporary or
permanent.
4. As used in this section "vessel" means a vessel commonly known as a
"houseboat" and every vessel or floating craft propelled in any manner,
except a vessel having a valid marine document issued by the United
States or a foreign government.
PART 5 Boating Safety Education
Educational program. In order to protect the public interest in
the prudent and equitable use of the waters of the state and enhance the
enjoyment of pleasure boating and other sports thereon, the commissioner
shall initiate and put into effect a comprehensive educational program
designed to advance boating safety, which provides for the training of
all boat operators in the safe operation of vessels including personal
watercraft and specialty prop-craft.
Information. Such program shall include the preparation and
dissemination of water safety information to the public, and
particularly to the owners and operators of pleasure boats.
Rules and regulations. The commissioner may make rules and
regulations designed to result in the further knowledge and observance
of the principles of safe boat operation.
Boating safety certificate. 1. "Boating safety certificate"
shall mean a certificate issued by the commissioner evidencing that the
holder thereof has successfully completed a course of instruction in
boating safety as provided in this section. The commissioner shall put
into effect a plan for the training of all boat operators and the
issuance of such boating safety certificates. For the purposes of this
section, the term "boating safety" shall include instruction in the safe
operation of personal watercraft and specialty prop-craft.
2. "Boating safety certificate" shall also mean a certificate issued
by the commissioner evidencing that the holder thereof has successfully
completed a course of instruction in the safe operation of vessels
including personal watercraft and speciality prop-craft. The
commissioner is authorized to collect a fee not to exceed ten dollars
for the issuance of such certificate which fee shall be deposited in the
"I love NY waterways" boating safety fund established by section
ninety-seven-nn of the state finance law, as added by chapter eight
hundred five of the laws of nineteen hundred ninety-two, and shall be
solely available to support the administration of personal watercraft
and specialty prop-craft safety training and enforcement.
3. The commissioner is authorized and directed to establish a system
for tracking and replacing boating safety certificates issued by the
commissioner. The commissioner is further authorized to require that any
other entity approved by the commissioner to provide courses of
instruction and award boating safety certificates establish a system for
tracking and replacing boating safety certificates so as to enable the
replacement of lost or stolen certificates to those who have previously
been awarded such certificates.
Insurance rate reduction. Any insurance carrier licensed to
issue yacht or boating liability insurance in this state is authorized
to grant rate reductions with the approval of the department of
financial services to any owner of a yacht or boat who has successfully
completed a boating safety course or an advanced boating safety course
or holds a valid United States Coast Guard operators license.
Courses of instruction. 1. For the purpose of giving such
courses of instruction and awarding boating safety certificates, the
commissioner may designate as his or her agent any person the
commissioner deems qualified to act in such capacity, including, but not
limited to, certified instructors of the United States coast guard
auxiliary, United States power squadrons, the United States sailing
association for a powerboating course or courses which are approved by
the commissioner, American power boat association, boy scouts of
America, Red Cross and other organizations. No charge whatsoever shall
be made to any person less than eighteen years of age for the issuance
of a boating safety certificate. Persons less than eighteen years of age
may be charged a fee for instruction in boating safety, except that the
office may not charge a fee when providing such instruction to persons
less than eighteen years of age.
2. The commissioner is authorized, at his or her discretion, to
develop a method for approving internet-based boating safety courses as
an appropriate and effective method for the administration and
completion of training in the safe operation of vessels, including
personal watercraft and specialty prop-craft, for the purposes of
awarding a boating safety certificate pursuant to this section. All
approved internet-based boating safety courses shall employ methods to
ensure attendance of the student throughout the course.
ARTICLE 4-A Enforcement By Counties
Definitions. As used in this article: 1. "State aid" shall
mean payments by the state to an eligible governmental entity in
accordance with the provisions of this article.
2. "Program year" shall mean the calendar year.
2-a. "Eligible governmental entity" shall mean the Lake George park
commission or a county enforcing the provisions of this chapter and
having an accident reporting system and vessel and related equipment
anti-theft program and/or an "I love NY waterways" boating safety
program and/or boating noise level enforcement program approved by the
commissioner. In a county which does not enforce the provisions of this
chapter and has an approved accident reporting system and vessel and
related equipment anti-theft program and/or an "I love NY waterways"
boating safety program and/or a boating noise level enforcement program,
the eligible governmental entity may be a city, town or village within
the county. In addition, the commissioner shall promulgate regulations
to provide for direct funding to any city, town or village in a county
constituting an eligible governmental entity pursuant to this
subdivision which such city, town or village enforces the provisions of
this chapter and has established an "I love NY waterways" boating safety
program approved by the commissioner.
3. "County, city, town or village" shall mean each county, city, town
or village in the state of New York except those counties which lie
within the territorial limits of the city of New York. The term "county"
with reference to such counties lying within the territorial limits of
the city of New York shall mean the city of New York.
4. "Authorized expenditures" shall mean those expenditures determined
by the commissioner to be reasonable and necessary for the adequate and
proper enforcement of the provisions of this chapter, and for
implementing an accident reporting system and vessel and related
equipment anti-theft program and/or an "I love NY waterways" boating
safety program and/or a boating noise level enforcement program. The
commissioner shall prepare and maintain in his office a schedule of such
authorized expenditures and amend the same from time to time.
Vessel and equipment anti-theft program; eligibility for state
aid. 1. The commissioner of parks, recreation and historic preservation
shall establish a vessel and related equipment anti-theft program, which
shall be applicable on all waterways or bodies of water located within
New York state or that part of any body of water adjacent to New York
state over which the state has territorial jurisdiction, and on which
watercraft may be used or operated. Such program shall include, but need
not be limited to provisions relating to the reporting of vessel and
related equipment theft, the dissemination of information relating to
vessel and related equipment theft, personnel training, the
establishment of a system to aid in the identification of stolen vessels
and related law enforcement functions.
* 1-a. The commissioner shall establish an "I love NY waterways"
boating safety program which shall be applicable on the navigable waters
of the state or any tidewaters bordering on or lying within the
boundaries of Nassau and Suffolk counties. Such program shall include
boating safety and accident prevention education and measures to reduce
alcohol-related boating accidents and injuries.
* NB There are 2 sb 1-a's
* 1-a. The commissioner shall establish a boating noise level
enforcement program which shall be applicable on the navigable waters of
the state or any tidewaters bordering on or lying within the boundaries
of Nassau and Suffolk counties.
* NB There are 2 sb 1-a's
2. Each eligible governmental entity shall be entitled to receive
state aid as hereinafter provided. An entity seeking reimbursement for
expenditures incurred in enforcement of this chapter and participation
in approved accident reporting and anti-theft programs and/or an "I love
NY waterways" boating safety program and/or a boating noise level
enforcement program shall submit to the commissioner by October first of
each year an estimate of such expenditures for the current calendar
year, in such form and containing such information as he may require.
Within one month after the close of the calendar year, it shall submit
to the commissioner a statement of authorized expenditures actually
incurred, in such form and containing such information as he may
require.
3. The amount of state aid to be allocated to eligible governmental
entities pursuant to this article shall be determined by the
commissioner as hereinafter provided. The commissioner shall determine
the percentage proportion which the authorized expenditures of each
individual entity, not exceeding four hundred thousand dollars for each
county including municipalities therein, shall bear to the total
authorized expenditures of all entities. Such percentage proportion
shall then be applied against an amount equal to one-half of the total
of the amount received by the state in each preceding program year in
vessel registration fees as provided in section twenty-two hundred
fifty-one of the vehicle and traffic law, less no more than thirty
percent, subject to appropriation, which may be used by the commissioner
and the commissioner of motor vehicles for administrative costs of the
program, including training and equipment, and by the department of
environmental conservation, the division of state police and other state
agencies, subject to the approval of the commissioner, for the purposes
of this article, plus the entire amount received pursuant to subdivision
nine of section forty-four of this chapter. The amount thus determined
shall constitute the maximum amount of state aid to which each such
entity shall be entitled; provided, however, that no entity shall
receive state aid in an amount in excess of fifty percent of its
authorized expenditures as approved by the commissioner for such program
year. The commissioner shall certify to the comptroller the amount thus
determined for each eligible local governmental entity as the amount of
state aid to be apportioned to such eligible local governmental entity.
The allocation of state aid to any county, town or village within the
Lake George park shall not be reduced because of the allocation of state
aid to the Lake George park commission. Of the remaining funds received
by the state for the registration of vessels as provided in section
twenty-two hundred fifty-one of the vehicle and traffic law, no less
than six percent shall be made available to the commissioner for the
expenses of the office in providing navigation law enforcement training
and administering the provisions of this section.
4. The amount of funds historically appropriated by any municipality
receiving funding pursuant to this article shall not be reduced because
of the availability of appropriations from such fund.
Rules. The commissioner may adopt and amend when he deems
necessary all rules and regulations to carry out the provisions of this
article.
ARTICLE 5 Tidewater Navigation
Three feet depth to be maintained. Whenever a municipal
corporation shall divert or cause to be diverted the water, or a portion
thereof, of a fresh water stream or streams outside the limits of an
incorporated city flowing into a tidewater creek or estuary which
tidewater creek or estuary before such diversion was navigable for
vessels of twenty or more tons burden, it shall be the duty of the
corporation so diverting or causing to be diverted such stream or
streams of fresh water to keep said navigable tidewater creek or estuary
deepened to the depth of at least three feet at low water mark from its
mouth to the head of tidewater for the full natural width of said creek,
and to maintain such navigable depth of water at all times, but in the
county of Nassau it shall not be compulsory to maintain such depth to
any greater width than fifty feet.
Supervisor to serve notice. It shall be the duty of the
supervisor of the town or the president of the incorporated village in
which any such tidewater creek or estuary is located, in whole or in
part, to serve written or printed notice on the chief officer of the
municipal corporation so diverting water from the stream of fresh water,
or on the superintendent or other person in charge of the works, at any
time, of the fact of such tidewater creek or estuary not being
maintained at the depth and width herein provided for, and the said
municipal corporation shall within fifteen days thereafter, by dredging
or otherwise, restore such navigable stream to the depth as specified by
this article; and it shall not be lawful for such corporation to
continue the diversion of any such fresh water stream after said fifteen
days have expired from the time of serving such notice, until the
tidewater creek or estuary into which any such stream flows shall have
been deepened to the required depth and width. If such municipal
corporation disputes any of the allegations of fact contained in such
notice, it must within three days after receiving the notice cause a
reply in writing to be served on the town or village officer whose name
is signed thereto by delivering the same to him personally, or to the
town clerk or village clerk as the case may be, and such reply in
writing must state what alleged fact is disputed, and also clearly
specify the reasons for controverting the allegations of fact contained
in the notice.
Commissioner of transportation to inspect and report. In case of
any controversy arising between such town or village officer and the
said municipal corporation diverting such fresh water as to the depth or
width of said tidewater creek or estuary, the commissioner of
transportation shall, within ten days after notice to him cause said
tidewater creek or estuary to be inspected and a report as to its
condition to be filed in the office of the department of transportation,
and the depth at low-water mark as certified to by him shall be deemed
correct, and the expense of such inspection shall be paid by said
municipal corporation, which corporation shall have fifteen days from
and after the filing of such report in which to put such tidewater creek
or estuary into the proper navigable condition herein provided for.
Injunction. At any time after fifteen days' notice has been
given, as hereinabove provided for, by the supervisor of a town or the
president of a village in which such tidewater creek or estuary is
located, either of such officers, as the case may be, may apply to the
supreme court for an injunction restraining said municipal corporation
from diverting any fresh water from the stream or streams above until
such tidewater creek or estuary shall have been put into the proper
condition as to depth and width herein provided for, and it shall be the
duty of the court to grant such injunction, and the costs of such
proceeding shall be paid by the municipal corporation diverting such
stream of water.
Application of this article. The provisions of this article
shall also apply in every respect to any stock corporation or
association, or any individual diverting the water of a fresh water
stream which would otherwise flow into a tidewater creek or estuary, and
the service of any notice or other paper necessary in an action or
otherwise shall be deemed to be served on such corporation or
association, or on such individual, if served on the superintendent or
other person in charge of the works by which the water is diverted from
such stream.
Penalty. Any corporation or individual continuing to divert
water from such fresh water stream without maintaining the navigable
depth of the tidewater creek or estuary into which it flows, as herein
provided for, shall be liable to a penalty of fifty dollars per day for
each and every day such diversion is continued, computing from the
expiration of forty days after notice is given as provided in section
sixty-one, which penalty may be sued for and recovered by such
supervisor or village president in the name of the town or village in
which such tidewater creek is so located, and the amount recovered shall
be paid into the treasury of such town or village.
Payment by city of New York. For the purpose of carrying out any
work which may be required to be done by the city of New York under the
provisions of this article, and to provide the means for doing such
work, said city must at all times make the necessary appropriation
therefor, to be levied and collected in the next annual tax levy. The
commissioner of environmental protection, in the city of New York, is
hereby authorized to enter into a contract with any person or
corporation for the doing of said work, in the manner provided by
chapter thirteen of the New York city charter and chapter thirteen of
the administrative code of the city of New York.
ARTICLE 6 Pilots and Pilotage Fees, Port of New York
Board of commissioners of pilots; powers and duties. 1. There
shall continue to be in the city of New York, a board entitled the
"board of commissioners of pilots," consisting of six persons, who shall
hold their offices respectively, for two years from the time of their
election, and until their successors are elected and have qualified. The
governor, temporary president of the senate and the speaker of the
assembly shall each appoint one commissioner. Two other of such
commissioners shall be elected by the presidents and vice-presidents of
the marine insurance companies of the city of New York, composing or
represented in the board of underwriters of such city, at a regularly
convened meeting of such board. Notice of such meeting shall be given by
the secretary of the board of underwriters or some member of the board
duly authorized by it and it shall state that the election of
commissioners will take place. Such notice shall be given in writing at
least one day before the election and shall be delivered at the office
of such company. Each insurance company represented at such meeting
shall be entitled to one vote, and the certificate of the secretary of
such board, or of any officer acting in his stead, shall be sufficient
prima facie evidence of an election. The sixth commissioner shall be
appointed by the governor from among the members or the staff of the
Albany port district commission for a term of two years and until his
successor is appointed and has qualified. No person shall be elected or
appointed to the board of commissioners of pilots who holds or
heretofore held a pilot's license issued pursuant to this article or
pursuant to any law, rule or regulation of this state or any political
subdivision, board, commission or authority of this state or of any
other state or pursuant to any federal law, rule or regulation. Of the
six members of the board of commissioners of pilots, at least four
commissioners shall have been a licensed deck officer in the United
States Merchant Marine or an unrestricted line officer in the United
States Naval Service or a commissioned officer in the United States
Coast Guard, and commanded a navigation watch on an ocean going vessel.
The remaining two commissioners shall each have a minimum of five years
of experience within the maritime industry. Upon the expiration of the
term of office of any commissioner or commissioners, or within thirty
days prior thereto, and upon any vacancy occurring by death,
resignation, removal from the state, or other cause, another election or
appointment to fill such office for the term of two years shall be held
by the same class of persons or authority which had previously held the
election or appointment for the office so expiring or becoming vacant.
2. Each commissioner, before entering upon the duties of his office,
shall take the constitutional oath of office before an officer
authorized to administer oaths, which oath or affirmation shall be
filed, without delay, in the office of the clerk of the county of New
York.
3. The board of commissioners shall appoint and at pleasure remove a
secretary and shall prescribe his duties and fix his compensation. Such
secretary shall take a like oath, to be filed in like manner, as
provided in subdivision two. The board shall establish an office in some
convenient place in the city of New York, where the commissioners shall
meet on the first Tuesday of every month, or more frequently by
adjournment, or upon a notice given by any one of them, or by the
secretary, as the circumstances may require.
4. The commissioners shall require the secretary in person or by
deputy to be in daily attendance at their office during reasonable
office hours on all ordinary business days. They shall cause the
secretary to keep a proper book or books, in which all the rules and
regulations, official transactions and proceedings, and whatever else
may be deemed by them proper and useful and immediately pertaining to
their duties or to the pilot service, shall be entered. They shall also
cause the secretary to keep a register of the names and addresses of all
the pilots licensed by them, with the dates of their licenses. Such
books may be inspected by any person interested.
5. The decision of a majority of the commissioners shall be conclusive
upon all questions arising under this article, except as otherwise
provided. In case of an omission to fill any vacancy in the board of
commissioners for one month, the remaining commissioners shall have and
exercise all of the powers and duties of the board until the vacancy is
filled.
* 6. (a) The board of commissioners of pilots shall advise the
governor and the legislature on matters pertaining to pilotage fees. The
board is authorized to review all aspects relevant to the determination
of pilotage fees for vessels entering or departing from the Port of New
York by way of Sandy Hook and by way of Sands Point or Execution Rocks;
for vessels transitting the Hudson river between Yonkers and the dam at
Troy; and for vessels transitting Long Island Sound and Block Island
Sound east of a line from City Island avenue on City Island through
Stepping Stones Light and entering or departing from any port on the New
York state waters of Long Island Sound east of Sands Point or Execution
Rocks for the purpose of making recommendations consistent with the
objectives of assuring public safety, protection of property, and the
protection of the environment. The board shall give due consideration to
the following:
(1) The costs and other expenses incurred by pilots in providing the
required services;
(2) The amount sufficient to provide a net return to the pilots which
will attract and hold competent persons;
(3) Pilotage rates for comparable services on other waters of the
United States;
(4) The methods of establishing pilotage rates for other waters of the
United States;
(5) Economic factors affecting the shipping industry and pilot
services in the areas under the jurisdiction of the board;
(6) Additions or modification of equipment in pilot vessels required
to adequately protect persons, property, and the environment;
(7) Auditors' reports pertaining to the income and expenses of pilot
associations;
(8) The number of pilots needed to provide and maintain adequate
services for the areas under the jurisdiction of the board;
(9) Review of the apprentice and training programs for the purpose of
determining the numbers of persons needed to fill vacancies in the pilot
services as they arise;
(10) Any other information deemed pertinent by the board.
(b) The board of commissioners of pilots shall submit to the governor
and the legislature a report containing its findings and recommendations
on pilotage fees on or before March first of each year.
* NB Expired June 30, 1995
Pilotage at Sandy Hook, Sands Point or Execution Rocks; rates.
1. Every foreign vessel and every American vessel under register
entering or departing from the Port of New York by the way of Sandy Hook
or by the way of Sands Point or Execution Rocks, shall take a Sandy Hook
pilot licensed under the authority of this article or of the laws of the
state of New Jersey or a person heretofore licensed as a Hell Gate
pilot. Notwithstanding the provisions of this subdivision, recreational
vessels as defined in section 2101 (34) of title 46 of the United States
Code of less than two hundred feet in length may be exempted from the
compulsory state pilotage requirement at the discretion of the board of
commissioners of pilots. Whenever the services of such a pilot are
refused, the master, owners or consignees, shall pay pilotage as if one
had been employed. Such pilotage shall be paid to the pilot first
speaking or offering his services as pilot to such vessel. The pilotage
authorized to be collected whenever a pilot shall be refused by a vessel
shall be sued for and recovered in the name of the pilot tendering such
service. Such pilotage, when recovered, shall belong to and may be
retained by such pilot for his own benefit and use. Recreational vessels
as defined in section 2101 (34) of title 46 of the United States Code
may be exempted from the compulsory state pilotage requirement pursuant
to this subdivision at the discretion of the board of commissioners of
pilots.
2. It shall be unlawful for any person not licensed as a Sandy Hook
pilot under this article, or under the laws of the state of New Jersey
or a person heretofore licensed as a Hell Gate pilot, to pilot or offer
to pilot any foreign vessel or vessel from a foreign port or any vessel
sailing under register to or from the port of New York, by the way of
Sandy Hook or by the way of Sands Point or Execution Rocks, and it shall
likewise be unlawful for any master or person on board a tug or tow-boat
to tow such a vessel to or from the port of New York by the way of Sandy
Hook or by the way of Sands Point or Execution Rocks unless such vessel
shall have on board a Sandy Hook pilot licensed under this article or
under the laws of the state of New Jersey.
3. Violation of subdivision two of this section shall be a misdemeanor
punishable by a fine not exceeding one hundred dollars or by
imprisonment not exceeding sixty days. Any person employing such an
unlicensed person to act as pilot shall forfeit and pay the sum of one
hundred dollars to the board of commissioners of pilots.
4. (a) Every foreign vessel and every American vessel under register
entering or departing from the port of New York by the way of Sandy Hook
or by the way of Sands Point or Execution Rocks shall be subject to
pilotage fees, at the rates hereinafter specified, at the time of her
entrance or departure. If such pilot at the request of the master, owner
or consignee of any inbound vessel or at the request of the agent
entering such vessel at the port of New York anchors or moors such
vessel at any place inside of Sandy Hook or inside of Sands Point or
Execution Rocks, or if such vessel be detained at quarantine, the same
pilotage fees shall be payable and the pilot entitled to his discharge.
(b) The following scale of charges shall be applicable:
(1) Upon the effective date of this paragraph and thereafter:
(i) The following rate table shall be used to calculate pilotage fees
by multiplying total pilotage units per vessel by the designated factor,
then adding or subtracting the designated adjustment:
PILOTAGE UNITS FACTOR ADJUSTMENT
0 to 24.99 0 +455
25 to 49.99 0 +568
50 to 99.99 0 +710
100 to 299.99 7.65 -55
300 to 474.99 6.89 +173
475 and over 0.91 +3014
The pilotage fee charged shall be the fee calculated pursuant to the
rate table in this section plus seven and one-half (7.5%) percent of the
calculated fee.
(ii) On and after the date of receipt, by the board of commissioners
of pilots of a joint request from the united New York Sandy Hook pilots'
benevolent association and the united New Jersey Sandy Hook pilots'
benevolent association, pilotage fees shall be calculated pursuant to
this subparagraph. Such request shall be provided to the board of
commissioners of pilots within ten days of approval by the membership of
the united New York Sandy Hook pilots' benevolent association and the
united New Jersey Sandy Hook pilots' benevolent association of
amendments to the articles of association consistent with this
subparagraph on or before December thirty-first, two thousand six.
1. (A) (i) The following rate table shall be used to calculate base
pilotage tariffs:
PILOTAGE UNITS (P.U.) TARIFF
0 to 24.99 $900
25 to 49.99 $1060
50 to 99.99 $1309
100 to 499.99 $(13.19 x P.U.)
500 to 1649.99 $((P.U. - 500) x 1.77) + 6595
1650 and up $((P.U. - 1650) x 5.00) + 8726
(ii) Effective January first, two thousand twenty-seven, the following
rate table shall be used to calculate base pilotage tariffs:
0 to 24.99 $927
25 to 49.99 $1092
50 to 99.99 $1348
100 to 499.99 $(13.59 x P.U.)
500 to 1649.99 $((P.U. - 500) x 1.82) + 6793
1650 and up $((P.U. - 1650) x 5.15) + 8988
(iii) Effective January first, two thousand twenty-eight, the
following rate table shall be used to calculate base pilotage tariffs:
0 to 24.99 $946
25 to 49.99 $1114
50 to 99.99 $1386
100 to 499.99 $(14.41 x P.U.)
500 to 1649.99 $((P.U. - 500) x 1.92) + 7201
1650 and up $((P.U. - 1650) x 5.40) + 9438
(iv) Effective January first, two thousand twenty-nine, the following
rate table shall be used to calculate base pilotage tariffs:
0 to 24.99 $965
25 to 49.99 $1136
50 to 99.99 $1427
100 to 499.99 $(15.27 x P.U.)
500 to 1649.99 $((P.U. - 500) x 2.02) + 7633
1650 and up $((P.U. - 1650) x 5.65) + 9910
(v) Effective January first, two thousand thirty, the following rate
table shall be used to calculate base pilotage tariffs:
0 to 24.99 $984
25 to 49.99 $1159
50 to 99.99 $1470
100 to 499.99 $(16.19 x P.U.)
500 to 1649.99 $((P.U. - 500) x 2.12) + 8091
1650 and up $((P.U. - 1650) x 5.90) + 10406
(vi) Effective January first, two thousand thirty-one, the following
rate table shall be used to calculate base pilotage tariffs:
0 to 24.99 $1004
25 to 49.99 $1182
50 to 99.99 $1514
100 to 499.99 $(17.16 x P.U.)
500 to 1649.99 $((P.U. - 500) x 2.32) + 8576
1650 and up $((P.U. - 1650) x 6.15) + 10926
(vii) Effective January first, two thousand thirty-two, the following
rate table shall be used to calculate base pilotage tariffs:
0 to 24.99 $1024
25 to 49.99 $1206
50 to 99.99 $1559
100 to 499.99 $(18.19 x P.U.)
500 to 1649.99 $((P.U. - 500) x 2.42) + 9091
1650 and up $((P.U. - 1650) x 6.40) + 11472
(B) i. In addition to the base pilotage tariffs set forth in item (A)
of this subclause, there is hereby established a surcharge on every
foreign vessel and every American vessel under register entering or
departing from the port of New York by the way of Sandy Hook or by the
way of Sands Point or Execution Rocks. Such surcharge, as determined
quarterly by the Sandy Hook pilot's surcharge board, shall be imposed
for the exclusive purpose of the funding, on a sound actuarial basis,
the retirement benefits for Sandy Hook pilots', described below, and a
contribution per active Sandy Hook pilot equivalent to twelve percent of
each Sandy Hook pilot's earnings from service as a Sandy Hook pilot
based upon the base pilotage tariffs set forth in item (A) of this
subclause to fund a future pension, in whole or in part, or any other
replacement plan approved by the Sandy Hook pilots' surcharge board and
established from time to time for the benefit of Sandy Hook pilots as a
qualified plan under the Internal Revenue Code of 1986, as amended, as
more specifically described in subclause six of this clause. The amount
of the surcharge set forth herein shall not exceed the greater of
thirty-five percent of the sum of the base pilotage tariffs set forth in
item (A) of this subclause and the surcharge set forth in this
subparagraph; or seven million nine hundred thousand dollars
($7,900,000) in any calendar year.
ii. The Sandy Hook pilots' surcharge board shall consist of four
members. Such board shall be composed of the president of the board of
commissioners of pilots of the state of New York, or his designee from
the board of commissioners, the president of the united New York Sandy
Hook pilots benevolent association, or his designee who must be a member
of such association, the president of the board of commissioners of
pilots of the state of New Jersey, or his designee from the board of
commissioners, and the president of the United New Jersey Sandy Hook
pilots benevolent association, or his designee who must be a member of
such association. The president of the board of commissioners of pilots
of the state of New Jersey and the president of the United New Jersey
Sandy Hook pilots benevolent association may decline to be part of said
Board, whereupon the position shall be filled by a member of the board
of commissioners of pilots of New York so appointed by the president,
and/or a member of the United New York Sandy Hook pilots' benevolent
association so appointed by the president of the association. The fifth
member, if necessary, shall be appointed by a majority of the
aforementioned four members from a list submitted by the American
arbitration association from its lists of commercial arbitrators. If,
after submission of such list, a majority of the abovementioned four
members fail to agree upon a single arbitrator as the "fifth member",
then the American arbitration association shall be authorized to select
and submit the name of the "fifth member" for appointment. Such "fifth
member" shall be appointed within ten days of a deadlocked vote of the
Sandy Hook pilot surcharge board. Such aforementioned members shall vote
at meetings called upon written notice mailed seven calendar days in
advance of the meeting, to determine the rate of surcharge, assisted as
necessary by qualified actuaries or accountants, authorized hereby in
subitem i of this item during each calendar quarter in time sufficient
for such surcharge to be in effect on the following January first, April
first, July first, and October first of each year and as authorized in
paragraph (e) of this subdivision during each calendar year in time
sufficient for such surcharge to be in effect on the following July
first of each year. When the Sandy Hook pilot surcharge board is
operating as authorized in paragraph (e) of this subdivision, an
additional member, appointed by the governor to represent the interests
of the shipping industry shall serve on the board. Such additional
member, upon appointment by the governor, shall serve in such capacity
at the pleasure of the governor and until a replacement is appointed by
the governor. Written notice of meetings may be waived if done so with
unanimous consent of all board members. Members of the Sandy Hook pilot
surcharge board shall be subject to section seventeen of the public
officers law.
iii. The amount of the surcharge described in subitem i of this item
on the date pilotage rates are computed pursuant to subitem ii of this
item shall be:
PILOTAGE UNITS TARIFF
0 to 24.99 $150.60
25 to 49.99 $179.00
50 to 99.99 $220.50
100 to 299.99 $((2.37x P.U.)-15
300 to 474.99 $((2.14x P.U.)+53)
475 and up $((0.29x P.U.)+935)
(C) The scale of charges set forth in this clause is deemed a pilotage
fee and shall be subject to the provisions of section ninety-five of
this article.
(D) Every foreign vessel and every American vessel under register
entering or departing from the Port of New York by the way of Sandy Hook
or by the way of Sands Point or Execution Rocks making more than ten
port calls per month shall receive a discount of fifty percent of the
charges set forth in items (A) and (B) of this subclause for each port
call in excess of ten. This discount is to be calculated for each
calendar month.
2. (A) All retirement assets shall be used exclusively to pay a yearly
target retirement benefit to (aa) Sandy Hook pilots active on the date
pilotage rates are computed pursuant to this clause and thereafter, upon
retirement on or after the age of sixty, or sick retirement; (bb)
retired pilots or pilots receiving sick retirement benefits on the date
of adoption; and (cc) to surviving spouses of pilots, as provided for
below.
(B) No individual other than those specified in item (A) of this
subclause shall be eligible for benefits pursuant to the surcharge
described in subitem i of item (B) of subclause one of this clause
without the approval of the Sandy Hook pilots' surcharge board.
(C) The funds generated by the surcharge imposed by subitem i of item
(B) of subclause one of this clause and item (A) of subclause one of
this clause shall be administered by the joint board of trustees, or any
successors thereto, of the united New York Sandy Hook pilots' benevolent
association and the united New Jersey Sandy Hook pilots' benevolent
association, or any successors thereto.
(D) The surcharges pursuant to subitem i of item (B) of subclause one
of this clause and item (A) of subclause one of this clause, shall be
collected by the agent of the Sandy Hook pilots. Funds generated for
these purposes shall be audited annually by the Surcharge Board to
ensure proper funding for the purposes set forth in subitem i of item
(B) of subclause one of this clause.
3. (A) Each Sandy Hook pilot active on the date pilotage rates are
computed pursuant to this clause who retires or becomes eligible for
sick retirement benefits shall receive, a target yearly benefit computed
as a single life annuity, initially equal to fifty percent (50%) of the
amount which is equal to the highest earnings from service as a full
branch Sandy Hook pilot based upon the base pilotage tariffs set forth
in item (A) of subclause one of this clause during the last three full
calendar years of service as an active Pilot prior to retirement,
reduced as provided in subclause six of this clause and adjusted as
provided in subclause seven of this clause.
(B) Each retired Sandy Hook pilot and each Sandy Hook pilot receiving
sick retirement benefits on or after the date pilotage rates are
computed pursuant to this clause shall receive a target yearly benefit
computed as a single life annuity, initially equal to fifty percent of
the amount which is equal to the highest earnings from service of a full
branch Sandy Hook pilot during calendar year nineteen hundred
ninety-four as an active pilot, reduced by the amount determined for
such year by the joint board of trustees to be set aside for each active
Sandy Hook pilot's retirement, and adjusted as provided in subclause
seven of this clause.
(C) Each Sandy Hook pilot who first entered service as a Sandy Hook
pilot after the date pilotage rates are computed pursuant to this
clause, shall participate in such qualified retirement program as
adopted by each such pilot and funded by such portion of the surcharge
allocated thereto by the surcharge board to provide a contribution of an
amount equivalent to twelve percent of the earnings from service as an
active Sandy Hook pilot based upon the base pilotage tariffs set forth
in item (A) of subclause one of this clause. Such amount shall be
transferred directly by the agent to such pilot's retirement account, it
being understood that such pilot's entire retirement benefit will be
provided solely by the account balance of such retirement account on the
date of retirement. In addition, such surcharge shall be used to
purchase life and disability insurance coverage from an insurance
company selected by the joint board of trustees. Such disability
insurance shall provide a disability benefit computed as a single life
annuity, equal to fifty percent (50%) of the amount which is equal to
such pilot's earnings from service as an active Sandy Hook pilot based
upon the base pilotage tariffs set forth in item (A) of subclause one of
this clause during the last full calendar year of service as an active
Sandy Hook pilot prior to disability, until the age of sixty. In the
event such disability insurance is unavailable, each such pilot eligible
for sick retirement benefits shall receive, a target yearly benefit
computed as a single life annuity equal to the sum of ten percent of the
amount which is equal to the earnings from service as an active Sandy
Hook pilot based upon the base pilotage tariffs set forth in item (A) of
subclause one of this clause during the last full calendar year of
service as an active Sandy Hook pilot prior to disability and one and
sixth-tenth percent (1.6%) for each year of service after the first year
to a maximum of fifty percent of the amount which is equal to the
earnings from service as an active Sandy Hook pilot based upon the base
pilotage tariffs set forth in item (A) of subclause one of this clause
during the last full calendar year of service as an active Sandy Hook
pilot prior to disability, until the age of sixty.
4. (A) A Sandy Hook pilot eligible for benefits set forth in item (A)
of subclause three of this clause who retires, shall not be entitled to
commence receiving benefits until the commencement of the benefit
payment period next following the date on which such pilot retired or
became eligible for sick retirement benefits. For accounting purposes,
the benefit payment periods shall consist of a full calendar quarter
commencing on January first, April first, July first, and October first
of each year, but the first payments of benefits shall be made during
the months of March, June, September, and December.
(B) No retired Sandy Hook pilot shall commence receiving benefits
until a properly completed resignation as an active pilot specifying a
proposed date of retirement has been submitted in writing to the
appropriate board of trustees, or successor thereto, prior to November
first, if retirement is to become effective on the first day of the
following January; prior to February first, if retirement is to become
effective on the first day of the following April; prior to May first,
if retirement is to become effective on the first day of the following
July; and, prior to August first, if retirement is to become effective
on the first day of the following October.
(C) For the purpose of the computations described in item (A) of
subclause three of this clause service by a pilot of more than six
months of such pilot's last calendar year as an active pilot shall be
considered a full calendar year.
(D) If a retired Sandy Hook pilot or a Sandy Hook pilot receiving sick
retirement benefits dies without a surviving spouse, the balance of the
target yearly pension benefit for the remainder of the benefit payment
period shall be paid to the deceased pilot's estate or designated
beneficiary after which all rights to benefits shall terminate.
5. (A) The surviving spouse of a Sandy Hook pilot described in item
(A) of subclause three of this clause who dies while in active service
shall receive a target yearly pension benefit equal to fifty percent of
the amount which such deceased pilot would have received under item (A)
of subclause three of this clause had retirement immediately preceded
the date of death, reduced as provided in subclause six of this clause
and adjusted as provided in subclause seven of this clause.
(B) With respect to Sandy Hook pilots described in items (A) and (B)
of subclause three of this clause, the surviving spouse of a deceased
retired Sandy Hook pilot or a deceased Sandy Hook pilot receiving sick
retirement benefits on the date of death, shall receive a target yearly
benefit equal to the deceased pilot's benefit for the remainder of the
benefit payment period in which death occurred, and thereafter fifty
percent (50%) of the amount received by the deceased pilot on the date
of death, adjusted as provided in subclause seven of this clause.
(C) Upon the death of the surviving spouse of a deceased Sandy Hook
pilot who was receiving benefits, the balance of the target yearly
pension benefit for the remainder of the benefit payment period shall be
paid to the deceased surviving spouse's estate or designated beneficiary
after which all rights to benefits shall terminate.
6. The united New York Sandy Hook pilots' benevolent association and
the united New Jersey Sandy Hook pilots' benevolent association, or any
successors thereto, or the pilots individually shall adopt such other
money purchase qualified plans under the Internal Revenue Code of 1986,
as amended, as approved by the Sandy Hook pilots' surcharge board, the
present value of the aggregate contributions thereto provided through
funding under subitem i of item (B) of subclause one of this clause,
adjusted annually on January first of each year to reflect the average
thirty year treasury bond rate for the prior calendar year plus fifty
basis points and then restated as a single life annuity, shall offset
(but not below zero) upon retiring from service as an active Sandy Hook
pilot on or after the age of sixty, or upon attaining the normal
retirement age of sixty years for those pilots receiving a sick
retirement benefit, the target yearly pension benefits payable under the
plan from time to time to each beneficiary.
7. The joint board of trustees or any committee appointed thereby
shall adjust the benefits described in items (A) and (B) of subclause
three of this clause by not more than one-half of the cumulative
adjustment in the "Consumer Price Index - All Urban Consumers - (CPI-U)
N.Y. - Northern N.J. - Long Island, NY-NJ-CT - All Items" on the earlier
of each third anniversary of the date pilotage rates are computed
pursuant to this subparagraph or the date on which such consumer price
index increases by an increment of more than twelve percent (12%) from
the level in effect on the date (aa) pilotage rates are computed
pursuant to this subclause, or (bb) of any subsequent adjustment to such
rates. These adjustments shall take place for a period of fifteen years
from the date pilotage rates are computed pursuant to this subclause
with respect to pilots described in item (B) of subclause three of this
clause and for a period of fifteen years from the date of retirement
with respect to pilots described in item (A) of subclause three of this
clause. Adjustments granted to retired pilots or their surviving spouses
retired less than the full three year interval between adjustments shall
have such adjustments pro-rated to the number of months they have been
retired prior to such adjustment. The determination by the joint board
of trustees or any committee appointed thereby of the amount of such
adjustment shall be final.
8. In the event that in any calendar year the surcharge described in
subitem i of item (B) of subclause one of this clause is subject to the
limitation set forth in such subitem i the benefits payable under items
(A), (B) and (C) of subclause three of this clause, items (A), (B) and
(C) of subclause five of this clause and subclause six of this clause
and the portion of the surcharge allocable thereto, shall be reduced
pro-rata. However, in the event of such pro-rata reduction, the joint
board of trustees shall arrange to fund out of the base pilotage tariffs
set forth in item (A) of subclause one of this clause the twelve percent
contribution level contemplated in subitem i of item (B) of subclause
one of this clause. The joint board of trustees shall determine the
amount of such reductions and the amount of such funding out of base
pilotage tariffs, which determinations shall be final.
9. The joint board of trustees may, from time to time, adopt such
regulations as are deemed appropriate to implement the provisions of
this clause.
(2) "Pilotage Units" as used in this subdivision shall be determined
by multiplying the overall length of the vessel by the extreme breadth
by the depth to the uppermost continuous deck and dividing the total by
ten thousand, as expressed by the following formula:
Overall Length x Extreme Breadth x Depth
to Uppermost Continuous Deck
________________________________________
10,000
equals Pilotage Units
(c) Definitions. "Overall length" is the distance between the forward
and after extremities of the vessel.
"Extreme breadth" is the maximum breadth to the outside of the shell
plating of the vessel.
"Depth" is the vertical distance at amidships from the top of the keel
plate to the uppermost continuous deck, fore and aft, and which extends
to the sides of the vessel. The continuity of a deck shall not be
considered to be affected by the existence of openings, including but
not limited to tonnage openings, engine spaces or a step in the deck.
All measurements shall be in feet and inches (U.S.).
The board of commissioners of pilots shall be the sole arbiter with
respect to a question concerning these definitions. The decision by the
board shall be final.
(d) The measurements of overall length, extreme breadth, and depth, as
previously defined, shall be made available to the pilot by the master
or his agent for the purpose of computation of pilotage fees. Failure to
provide the measurements so required shall subject the vessel to the
maximum pilotage charge.
(e) There is hereby created a segregated fund to be known as the
capital expense fund. Such segregated fund shall be initially funded by
the increase in the base pilotage tariff as set forth in item (A) of
subclause one of clause (ii) of subparagraph one of paragraph (b) of
this subdivision by not more than seventy-five dollars per ship. Such
surcharge, upon annual review and approval of the Sandy Hook pilots
surcharge board, shall be imposed and used for the purposes of funding,
after the payment of reasonable and necessary expenses, capital
expenditures including: the payment of outstanding debt related to the
reengining of the pilot boat Sandy Hook; the payment of outstanding debt
related to the rebuilding of the bulkhead and pier at the Sandy Hook
Pilot base at Staten Island, New York; the payment of outstanding debt
related to and the extraordinary repairs to the pilot boat New York; to
secure four new pilot launches; and to fund all extraordinary capital
expenses (those beyond normal operating expenses) approved by the
surcharge board along with portable DGPS pilot units, if deemed
appropriate by the surcharge board.
Such surcharge may fund similar future expenditures upon annual review
and approval of the Sandy Hook pilot surcharge board. The surcharge
board may set the rate not to exceed three hundred dollars per ship. The
surcharge board is hereby authorized to reduce or suspend payment of the
surcharge set forth herein to take into account any monies dedicated or
awarded to the pilot capital needs from sources other than the tariff
and surcharges set forth in this article.
Unlicensed piloting. A person other than a lawfully
authorized Sandy Hook pilot or a person heretofore licensed as a Hell
Gate pilot who pilots or offers to pilot or tows or offers to tow any
boat or vessel (except barges, vessels under fifty-five tons burden, and
canal boats actually used in navigating the canals) through that part of
the East river, commonly called Hell Gate, is guilty of a misdemeanor.
But no pilotage shall be charged to any vessel under a coasting license,
on entering or departing from the port of New York by way of the East
river called Hell Gate unless such vessel actually employs a pilot, and
the making of such charge or demand without such employment shall be
deemed a misdemeanor.
This section does not apply to vessels owned or belonging to citizens
of the United States, and licensed and engaged in the coasting trade.
Pilotage on the Hudson river; rates. 1. Every foreign vessel
and every American vessel under register, except vessels proceeding
otherwise than by sea and of less than three hundred gross registered
tons and having a fully loaded draft of seven feet or less, entering or
departing from the Hudson river north of a line running from the foot of
Main street, Yonkers, west to Alpine, New Jersey, or navigating any of
the waters of the Hudson river north of said line and south of the dam
at Troy, New York, shall take a Hudson river pilot licensed under the
authority of this article. Notwithstanding the provisions of this
subdivision, recreational vessels as defined in section 2101 (34) of
title 46 of the United States Code of less than two hundred feet in
length may be exempted from the compulsory state pilotage requirement at
the discretion of the board of commissioners of pilots. Whenever the
services of such a pilot are refused, the master, owners or consignees
shall pay pilotage as if one had been employed. Such pilotage shall be
paid to the pilot first speaking or offering his services as pilot to
such vessel. The pilotage authorized to be collected whenever a pilot
shall be refused by a vessel shall be sued for and recovered in the name
of the pilot tendering such service. Such pilotage, when recovered,
shall belong to and may be retained by such pilot for his own benefit
and use. Recreational vessels as defined in section 2101 (34) of title
46 of the United States Code may be exempted from the compulsory state
pilotage requirement pursuant to this subdivision at the discretion of
the board of commissioners of pilots.
2. It shall be unlawful for any person not licensed as a Hudson river
pilot under this article to pilot or offer to pilot any foreign vessel
or vessel from a foreign port or any vessel under register on that
portion of the Hudson river specified in the preceding subdivision.
3. Violation of subdivision two of this section shall be a misdemeanor
punishable by a fine not exceeding one hundred dollars or by
imprisonment not exceeding sixty days. Any person employing such an
unlicensed person to act as pilot shall forfeit and pay the sum of one
hundred dollars to the board of commissioners of pilots.
4. (a) Every foreign vessel and every American vessel under register
navigating the waters of that portion of the Hudson river specified in
this section shall be subject to base pilotage rates hereinafter
specified in this subdivision:
(b) From or into the port of New York:
Yonkers Line
The following scale of charges shall be applicable:
(1) (i) All vessels of 100 pilotage units and over shall pay $12.17
per pilotage unit for Section 1, Lower River; Yonkers, to all ports
through Hyde Park.
The following charges shall be applicable to Section 1, Lower River:
Up to 50 pilotage units ........................................ $852.97
More than 50 and up to 100 pilotage units ..................... $1217.00
All vessels of 100 pilotage units and over shall pay ............ $17.19
per pilotage unit for Section 2, Upper River; Yonkers, to all ports
beyond Hyde Park through Albany or Troy.
The following charges shall be applicable to Section 2, Upper River:
Up to 50 pilotage units ....................................... $1406.05
More than 50 and up to 100 pilotage units ..................... $1719.00
A maximum charge of up to 500 pilotage units shall be applicable.
(ii) Twelve months after the effective date of this clause the
following base pilotage rates shall be applicable:
All vessels of 100 pilotage units and over shall pay $12.41 per
pilotage unit for Section 1, Lower River; Yonkers, to all ports through
Hyde Park.
The following base pilotage rates shall be applicable to Section 1,
Lower River:
Up to 50 pilotage units ........................................ $870.03
More than 50 and up to 100 pilotage units ..................... $1241.00
A maximum charge of up to 500 pilotage units
shall be applicable.
All vessels of 100 pilotage units and over shall pay a base pilotage
rate of .......................................................... 17.53
per pilotage unit for Section 2,
Upper River; Yonkers, to all ports beyond Hyde
Park through Albany or Troy.
The following base pilotage rates shall be applicable to Section 2,
Upper River:
Up to 50 pilotage units ....................................... $1434.17
More than 50 and up to 100 pilotage units ..................... $1753.00
A maximum charge of up to 500 pilotage units shall be applicable.
(iii) Twenty-four months after the effective date of this clause the
following base pilotage rates shall be applicable:
All vessels of 100 pilotage units and over shall pay $12.66 per
pilotage unit for Section 1, Lower River; Yonkers, to all ports through
Hyde Park.
The following base pilotage rates shall be applicable to Section 1,
Lower River:
Up to 50 pilotage units ........................................ $887.43
More than 50 and up to 100 pilotage units ..................... $1266.00
A maximum charge of up to 500 pilotage units shall be applicable.
All vessels of 100 pilotage units and over shall pay a base pilotage
rate of ......................................................... $17.88
per pilotage unit for Section 2, Upper River; Yonkers, to all ports
beyond Hyde Park through Albany or Troy.
The following base pilotage rates shall be applicable to Section 2,
Upper River:
Up to 50 pilotage units ....................................... $1462.85
More than 50 and up to 100 pilotage units ..................... $1788.00
A maximum charge of up to 500 pilotage units shall be applicable.
(iv) Thirty-six months after the effective date of this clause the
following base pilotage rates shall be applicable:
All vessels of 100 pilotage units and over shall pay $12.85 per
pilotage unit for Section 1, Lower River; Yonkers, to all ports through
Hyde Park.
The following base pilotage rates shall be applicable to Section 1,
Lower River:
Up to 50 pilotage units ........................................ $900.74
More than 50 and up to 100 pilotage units ..................... $1285.00
A maximum charge of up to 500 pilotage units shall be applicable.
All vessels of 100 pilotage units and over shall pay a base pilotage
rate of ......................................................... $18.15
per pilotage unit for Section 2, Upper River; Yonkers, to all ports
beyond Hyde Park through Albany or Troy.
The following base pilotage rates shall be applicable to Section 2,
Upper River:
Up to 50 pilotage units ....................................... $1484.48
More than 50 and up to 100 pilotage units ..................... $1815.00
A maximum charge of up to 500 pilotage units shall be applicable.
(v) Forty-eight months after the effective date of this clause the
following base pilotage rates shall be applicable:
All vessels of 100 pilotage units and over shall pay $13.07 per
pilotage unit for Section 1, Lower River; Yonkers, to all ports through
Hyde Park.
The following base pilotage rates shall be applicable to Section 1,
Lower River:
Up to 50 pilotage units ........................................ $914.25
More than 50 and up to 100 pilotage units ..................... $1307.00
A maximum charge of up to 500 pilotage units shall be applicable.
All vessels of 100 pilotage units and over shall pay a base pilotage
rate of ......................................................... $18.42
per pilotage unit for Section 2, Upper River; Yonkers, to all ports
beyond Hyde Park through Albany or Troy.
The following base pilotage rates shall be applicable to Section 2,
Upper River:
Up to 50 pilotage units ....................................... $1507.07
More than 50 and up to 100 pilotage units ..................... $1842.00
A maximum charge of up to 500 pilotage units shall be applicable.
(vi) Beginning on the thirtieth day following the effective date of
the act that added this clause, the following base pilotage rates shall
be applicable:
All vessels of 100 pilotage units and over shall pay $13.34 per
pilotage unit for Section 1, Lower River; Yonkers, to all ports through
Hyde Park.
The following base pilotage rates shall be applicable to Section 1,
Lower River:
Up to 50 pilotage units ........................................ $932.54
More than 50 and up to 100 pilotage units ..................... $1333.14
A maximum charge of up to 500 pilotage units shall be applicable.
All vessels of 100 pilotage units and over shall pay a base pilotage
rate of ......................................................... $18.79
per pilotage unit for Section 2, Upper River; Yonkers, to all ports
beyond Hyde Park through Albany or Troy.
The following base pilotage rates shall be applicable to Section 2,
Upper River:
Up to 50 pilotage units ....................................... $1537.22
More than 50 and up to 100 pilotage units ..................... $1878.84
A maximum charge of up to 500 pilotage units shall be applicable.
(vii) Effective January first, two thousand twenty-two, the following
base pilotage rates shall be applicable:
All vessels of 100 pilotage units and over shall pay $13.61 per
pilotage unit for Section 1, Lower River; Yonkers, to all ports through
Hyde Park.
The following base pilotage rates shall be applicable to Section 1,
Lower River:
Up to 50 pilotage units ........................................ $951.20
More than 50 and up to 100 pilotage units ..................... $1359.81
A maximum charge of up to 500 pilotage units shall be applicable.
All vessels of 100 pilotage units and over shall pay a base pilotage
rate of ......................................................... $19.17
per pilotage unit for Section 2, Upper River; Yonkers, to all ports
beyond Hyde Park through Albany or Troy.
The following base pilotage rates shall be applicable to Section 2,
Upper River:
Up to 50 pilotage units ....................................... $1567.97
More than 50 and up to 100 pilotage units..................... $1916.42
A maximum charge of up to 500 pilotage units shall be applicable.
(viii) Effective January first, two thousand twenty-three, the
following base pilotage rates shall be applicable:
All vessels of 100 pilotage units and over shall pay $14.02 per
pilotage unit for Section 1, Lower River; Yonkers, to all ports through
Hyde Park.
The following base pilotage rates shall be applicable to Section 1,
Lower River:
Up to 50 pilotage units ........................................ $979.74
More than 50 and up to 100 pilotage units ..................... $1400.60
A maximum charge of up to 500 pilotage units shall be applicable.
All vessels of 100 pilotage units and over shall pay a base pilotage
rate of ......................................................... $19.75
per pilotage unit for Section 2, Upper River; Yonkers to all ports
beyond Hyde Park through Albany or Troy.
The following base pilotage rates shall be applicable to Section 2,
Upper River:
Up to 50 pilotage units ....................................... $1615.01
More than 50 and up to 100 pilotage units ..................... $1973.91
A maximum charge of up to 500 pilotage units shall be applicable.
(ix) Effective January first, two thousand twenty-four, the following
base pilotage rates shall be applicable:
All vessels of 100 pilotage units and over shall pay $14.44 per
pilotage unit for Section 1, Lower River; Yonkers to all ports through
Hyde Park.
The following base pilotage rates shall be applicable to Section 1,
Lower River:
Up to 50 pilotage units ....................................... $1009.13
More than 50 and up to 100 pilotage units ..................... $1442.62
A maximum charge of up to 500 pilotage units shall be applicable.
All vessels of 100 pilotage units and over shall pay a base pilotage
rate of ......................................................... $20.34
per pilotage unit for Section 2, Upper River; Yonkers to all ports
beyond Hyde Park through Albany or Troy.
The following base pilotage rates shall be applicable to Section 2,
Upper River:
Up to 50 pilotage units ....................................... $1663.46
More than 50 and up to 100 pilotage units ..................... $2033.13
A maximum charge of up to 500 pilotage units shall be applicable.
(x) Effective January first, two thousand twenty-five, the following
base pilotage rates shall be applicable:
All vessels of 100 pilotage units and over shall pay $14.87 per
pilotage unit for Section 1, Lower River; Yonkers to all ports through
Hyde Park.
The following base pilotage rates shall be applicable to Section 1,
Lower River:
Up to 50 pilotage units ....................................... $1039.40
More than 50 and up to 100 pilotage units ..................... $1485.90
A maximum charge of up to 500 pilotage units shall be applicable.
All vessels of 100 pilotage units and over shall pay a base pilotage
rate of ......................................................... $20.95
per pilotage unit for Section 2, Upper River; Yonkers to all ports
beyond Hyde Park through Albany or Troy.
The following base pilotage rates shall be applicable to Section 2,
Upper River:
Up to 50 pilotage units ....................................... $1713.36
More than 50 and up to 100 pilotage units ..................... $2094.12
A maximum charge of up to 500 pilotage units shall be applicable.
(xi) Effective January first, two thousand twenty-six, the following
base pilotage rates shall be applicable:
All vessels of 100 pilotage units and over shall pay $15.32 per
pilotage unit for Section 1, Lower River; Yonkers to all ports through
Hyde Park.
The following base pilotage rates shall be applicable to Section 1,
Lower River:
Up to 50 pilotage units ....................................... $1070.58
More than 50 and up to 100 pilotage units ..................... $1530.48
A maximum charge of up to 500 pilotage units shall be applicable.
All vessels of 100 pilotage units and over shall pay a base pilotage
rate of ......................................................... $21.58
per pilotage unit for Section 2, Upper River; Yonkers to all ports
beyond Hyde Park through Albany or Troy.
The following pilotage rates shall be applicable to Section 2, Upper
River:
Up to 50 pilotage units ....................................... $1764.76
More than 50 and up to 100 pilotage units ..................... $2156.94
A maximum charge of up to 500 pilotage units shall be applicable.
(xii) Effective January first, two thousand twenty-seven, the
following base pilotage rates shall be applicable:
All vessels of 100 pilotage units and over shall pay $15.78 per
pilotage unit for Section 1, Lower River; Yonkers to all ports through
Hyde Park.
The following base pilotage rates shall be applicable to Section 1,
Lower River:
Up to 50 pilotage units ....................................... $1102.70
More than 50 and up to 100 pilotage units ..................... $1576.39
A maximum charge of up to 500 pilotage units shall be applicable.
All vessels of 100 pilotage units and over shall pay a base pilotage
rate of ......................................................... $22.23
per pilotage unit for Section 2, Upper River; Yonkers to all ports
beyond Hyde Park through Albany or Troy.
The following pilotage rates shall be applicable to Section 2, Upper
River:
Up to 50 pilotage units ....................................... $1817.70
More than 50 and up to 100 pilotage units ..................... $2221.65
A maximum charge of up to 500 pilotage units shall be applicable.
(1-a) All vessels shall pay an additional launch fee and communication
fee. The launch fee shall be set by the board of commissioners of pilots
to recoup the cost of operating a pilot launch and pilot station at
Yonkers. The communication fee shall be set by the board of
commissioners of pilots to recoup the cost of portable electronic
communication and navigation equipment carried aboard the vessel by the
pilot.
All vessels transiting Section 2, Upper River; Yonkers, to beyond Hyde
Park through Albany or Troy shall pay a mid-river launch fee. The
mid-river launch fee shall be set by the board of commissioners of
pilots to recoup the cost of operating a pilot launch and pilot station
at Norrie Point.
The launch fee, communication fee, and mid-river launch fee shall be
reviewed annually by the board of commissioners of pilots on or about
the anniversary date upon which this section shall have become a law.
In the event a vessel transiting the Hudson River requires a
continuous pilotage of more than ten hours, two pilots shall be assigned
at the beginning of such transit, and the fee shall be the regular
pilotage fee plus fifty percent for the second pilot. The fee for the
second pilot shall not apply when the first pilot is discharged at the
mid-river pilot station and relieved at such station by a second pilot.
A second pilot shall not be required when the vessel anchors for a
minimum of eight hours such that the transit does not require a
continuous pilotage of more than ten hours by one pilot.
(1-b) There is hereby created a Hudson River pilots surcharge board
which shall determine the rate of the surcharge provided in subparagraph
one-c of this paragraph. The surcharge board shall determine eligibility
for benefits pursuant to subdivisions five and eight of this section.
The Hudson River pilots surcharge board shall consist of two members
as follows: the president of the board of commissioners of pilots of the
state of New York, or his or her designee from the board of
commissioners, and the president of the Hudson River pilots association,
or his or her designee who must be a member of such association. In the
event the two members cannot reach a decision on the surcharge rate, a
third member shall be appointed by the two members from a list submitted
by the Society of Maritime Arbitrators from its lists of commercial
arbitrators. If, after submission of such a list, the two members of the
board fail to agree upon a single arbitrator as the third member, then
the Society of Maritime Arbitrators shall be authorized to select and
submit the name of the third member for appointment. Such third member
shall be appointed within ten days of a deadlocked vote of the Hudson
River pilots surcharge board. Such members shall vote at meetings called
upon written notice mailed seven calendar days in advance of the
meeting, to determine the rate of surcharge, assisted as necessary by
qualified actuaries or accountants, authorized in clause (i) of
subparagraph one-c of this paragraph during each calendar quarter in
time sufficient for such surcharge to be in effect on the following
January first, April first, July first, and October first of each year.
Written notice of meetings may be waived if done so with unanimous
consent of all board members. Members of the Hudson River pilots
surcharge board shall be subject to section seventeen of the public
officers law.
(1-c) (i) In addition to the base pilotage charge set forth in
subparagraph one of this paragraph, there is hereby established a
surcharge on every foreign vessel and every American vessel under
register navigating that portion of the Hudson River specified in this
section. Such surcharge, as determined quarterly by the Hudson River
pilots surcharge board, shall be imposed for the exclusive purpose of
the funding, on a sound actuarial basis, the retirement benefits for
Hudson River pilots, described in clause (ii) of this subparagraph.
(ii) The amount of the surcharge described in clause (i) of this
subparagraph shall be computed as follows:
PILOTAGE UNITS SURCHARGE
0 to 50 $113.00
51 to 100 $138.00
over 100 $1.38 per pilot unit
during the first twelve months after the effective date of this
subparagraph.
The amount of the surcharge described in clause (i) of this
subparagraph shall be computed as follows:
PILOTAGE UNITS SURCHARGE
0 to 50 $170.00
51 to 100 $207.00
over 100 $2.07 per pilot unit
during the period beginning with the thirteenth month and ending with
the twenty-fourth month after the effective date of this subparagraph.
The amount of the surcharge described in clause (i) of this
subparagraph shall be computed as follows:
PILOTAGE UNITS SURCHARGE
0 to 50 $213.00
51 to 100 $260.00
over 100 $2.60 per pilot unit
during the period beginning with the twenty-fifth month and ending with
the thirty-sixth month after the effective date of this subparagraph.
The amount of the surcharge described in clause (i) of this
subparagraph shall be computed as follows:
Pilotage units surcharge
0-50 $250.00
51-100 $305.00
Over 100 $ 3.05 per pilot unit
during the period beginning with the thirty-seventh month and ending
with the forty-eighth month after the effective date of this
subparagraph.
The amount of the surcharge described in clause (i) of this
subparagraph shall be computed as follows:
Pilotage units surcharge
0-50 $280.00
51-100 $341.00
Over 100 $ 3.41 per pilot unit
during the period beginning with the forty-ninth month and ending with
the sixtieth month after the effective date of this subparagraph.
(iii) Following the sixtieth month after the effective date of this
subparagraph, the amount of the surcharge as determined by the surcharge
board shall not exceed the greater of thirty-five percent of the sum of
the base pilotage charges collected pursuant to the rate set forth in
this subparagraph for Section 2, Upper River; Yonkers, to all ports
beyond Hyde Park through Albany or Troy, as amended, or five hundred
thousand dollars, in any calendar year.
(iv) The scale of charges set forth in this subparagraph is deemed a
pilotage fee and shall be subject to the provisions of section
ninety-five of this article.
(v) (A) The proceeds of the surcharge provided for in this section
shall be deposited in an account maintained by the Hudson River pilots
association for the benefit of Hudson River pilots eligible for benefits
as provided in this clause, from which account all such benefits and the
reasonable expenses for administration thereof shall be paid. The monies
on deposit in such account shall be referred to hereafter as the
"retirement assets". All retirement assets shall be used exclusively to
pay a yearly target retirement benefit to (I) Hudson River pilots active
on the date pilotage rates are computed pursuant to this subparagraph
and thereafter, upon retirement on or after the age of sixty; (II)
retired Hudson River pilots or Hudson River pilots receiving benefits on
the effective date of this section; and (III) to eligible surviving
spouses of retired pilots.
(B) Hudson River pilots who are also Sandy Hook pilots eligible to
receive a full branch retirement benefit under item (B) of subclause one
of clause (ii) of subparagraph one of paragraph (b) of subdivision four
of section eighty-eight of this article shall be excluded from receiving
any benefits specified in subdivision five of this section.
(C) No individual other than those specified in subclause (A) of this
clause shall be eligible for benefits pursuant to the surcharge
described in clause (i) of this subparagraph without the approval of the
Hudson River pilots surcharge board.
(D) The funds generated by the surcharge imposed by clause (i) of this
subparagraph shall be administered by the executive committee of the
Hudson River pilots association, or any successors thereto. Any funds
generated by the surcharge imposed by clause (i) of this subparagraph
which exceed the funds deemed sufficient to provide the benefits set
forth in items (I) and (III) of subclause (A) of this clause shall be
used to defray the retirement benefits set forth in this subclause.
(E) The surcharges pursuant to clause (i) of this subparagraph shall
be collected by the agent of the Hudson River pilots. Funds generated
for these purposes shall be audited annually by the surcharge board to
ensure proper funding for the purposes set forth in clause (i) of this
subparagraph.
(2) "Pilotage units" shall be determined as expressed by the following
formula:
Overall length x extreme breadth x depth to uppermost continuous deck
divided by 10,000 equals pilotage units.
(3) In the middle river and upper river as specified herein no foreign
and no American vessel under register shall be docked, undocked or
shifted unless such docking, undocking or shifting is performed by a
Hudson river pilot duly licensed under this article.
(c) Definitions: "Overall length" is the distance between the forward
and after extremities of the vessel.
"Extreme breadth" is the maximum breadth to the outside of the shell
plating of the vessel.
"Depth" is the vertical distance at amidships from the top of the keel
plate to the uppermost continuous deck fore and aft, and which extends
to the sides of the vessel. The continuity of a deck shall not be
considered to be affected by the existence of openings, including but
not limited to tonnage openings, engine space or a step in the deck.
All measurements shall be in feet and inches (U.S.).
The board of commissioners of pilots shall be the sole arbiter with
respect to a question concerning these definitions. The decision by the
board shall be final.
(d) The measurement of overall length, extreme breadth and depth, as
previously defined, shall be made available to the pilot by the master
or his agent for the purpose of computation of pilotage fees.
Failure to provide the measurements so required shall subject vessel
to the maximum pilotage charge.
5. Each Hudson River pilot who entered service after two thousand five
as a Hudson River pilot shall participate in such qualified retirement
program as adopted by each such pilot and funded by such portion of the
surcharge allocated thereto by the surcharge board to provide a
contribution of an amount equivalent to twelve percent of the earnings
from service as an active Hudson River pilot based upon the base
pilotage tariffs set forth in subparagraph one-c of paragraph (b) of
subdivision four of this section. Such amount shall be transferred
directly by the agent to such pilot's retirement account, it being
understood that such pilot's entire retirement benefit will be provided
solely by the account balance of such retirement account on the date of
retirement. In addition, such surcharge shall be used to purchase life
and disability insurance coverage from an insurance company selected by
the board. Such disability insurance shall provide a disability benefit
computed as a single life annuity, equal to fifty percent of the amount
which is equal to such pilot's earnings from service as an active Hudson
River pilot based upon the base pilotage tariffs set forth in
subparagraph one-c of paragraph (b) of subdivision four of this section
during the last full calendar year of service as an active Hudson River
pilot prior to disability, until the age of sixty. In the event such
disability insurance is unavailable, each such pilot eligible for sick
retirement benefits shall receive, a yearly benefit computed as a single
life annuity equal to the sum of ten percent of the amount which is
equal to the earnings from service as an active Hudson River pilot based
upon the pilotage tariffs set forth in subparagraph one-c of paragraph
(b) of subdivision four of this section during the last full calendar
year of service as an active Hudson River pilot prior to disability and
one and six-tenths percent for each year of service after the first year
to a maximum of fifty percent of the amount which is equal to the
earnings from service as an active Hudson River pilot based upon the
base pilotage tariffs set forth in subparagraph one-c of paragraph (b)
of subdivision four of this section during the last full calendar year
of service as an active Hudson River pilot prior to disability, until
the age of sixty.
6. Hudson River pilots who retired before nineteen eighty shall
receive an annual retirement benefit in the amount of thirty-four
thousand nine hundred ninety-five dollars; those who retired from
nineteen eighty-one through nineteen ninety shall receive an annual
retirement benefit in the amount of thirty-nine thousand nine hundred
ninety-five dollars; those who retired from nineteen hundred ninety-one
through two thousand shall receive an annual retirement benefit in the
amount of forty-four thousand nine hundred ninety-four dollars; those
who retired in two thousand one shall receive an annual retirement
benefit in the amount of fifty-eight thousand four hundred ninety-two
dollars; those who retired in two thousand eight shall receive an annual
retirement benefit in the amount of fifty-nine thousand nine hundred
ninety-two dollars; those who retired in two thousand ten shall receive
an annual retirement benefit in the amount of forty-nine thousand nine
hundred ninety-three dollars; an active Hudson River pilot who retires
before two thousand sixteen shall receive an annual retirement benefit
in the amount of eighty-four thousand six hundred dollars.
7. (a) A Hudson River pilot eligible for benefits set forth in
subdivision five of this section, who retires, shall not be entitled to
commence receiving benefits until the commencement of the benefit
payment period next following the date on which such pilot retired or
became eligible for disability retirement benefits. For accounting
purposes, the benefit payment periods shall consist of a full calendar
quarter commencing on January first, April first, July first, and
October first of each year, but the first payments of benefits shall be
made during the months of March, June, September, and December.
(b) No active Hudson River pilot shall commence receiving benefits
until a properly completed resignation as an active pilot specifying a
proposed date of retirement has been submitted in writing to the Hudson
River pilots executive committee, or successor thereto, prior to
November first, if retirement is to become effective on the first day of
the following January; prior to February first, if retirement is to
become effective on the first day of the following April; prior to May
first, if retirement is to become effective on the first day of the
following July; and, prior to August first, if retirement is to become
effective on the first day of the following October.
(c) For the purpose of the computations described in subdivision five
of this section, service by a pilot of more than six months of such
pilot's last calendar year as an active pilot shall be considered a full
calendar year.
(d) If a retired Hudson River pilot dies without a surviving spouse,
the balance of the yearly pension benefit for the remainder of the
benefit payment period shall be paid to the deceased pilot's estate or
designated beneficiary after which all rights to benefits shall be
terminated.
8. (a) The eligible surviving spouse of a Hudson River pilot described
in subdivision five of this section who dies while in active service
shall receive a yearly pension benefit equal to fifty percent of the
amount which such deceased pilot would have received under subdivision
five of this section had retirement immediately preceded the date of
death.
(b) With respect to Hudson River pilots described in subdivision five
of this section, the eligible surviving spouse of a deceased retired
Hudson River pilot receiving retirement benefits on the date of death,
shall receive a yearly benefit equal to the deceased pilot's benefit for
the remainder of the benefit payment period in which death occurred, and
thereafter fifty percent of the amount received by the deceased pilot on
the date of death.
(c) Upon the death of the eligible surviving spouse of a deceased
Hudson River pilot who was receiving benefits, the balance of the yearly
pension benefit for the remainder of the benefit payment period shall be
paid to the deceased surviving spouse's estate or designated beneficiary
after which all rights to benefits shall terminate.
9. A "Hudson River pilot" for the purposes of this section is defined
as an individual holding a license to act as Hudson River pilot for the
waters of the Hudson River north of a line running from the foot of Main
Street in Yonkers to Alpine, New Jersey and south of the dam at Troy,
issued by the board of commissioners of pilots of the state of New York.
A "retired Hudson River pilot" for the purposes of this section is a
pilot who retired from active service in the Hudson River pilots
association. An "eligible surviving spouse" for the purposes of this
section is defined as a spouse of a deceased pilot married at least one
year prior to the date of death of the deceased pilot.
Pilotage on Long Island Sound and Block Island Sound; rates.
1. Every foreign vessel and every American vessel under register
transiting the New York state waters of Long Island Sound or Block
Island Sound east of Execution Rocks or Sands Point, and any such
vessels entering or departing from any port situated on the New York
state waters of Long Island Sound east of Execution Rocks or Sands
Point, shall take a Long Island-Block Island Sound pilot licensed under
the authority of this article. Every foreign vessel and every American
vessel under register transiting the New York state waters of Long
Island Sound or Block Island Sound east of a line running southeasterly
from the mouth of the Byram River at the New York-Connecticut boundary
to Oak Neck Point on Long Island shall take a pilot licensed under the
authority of this article or the laws of any other state having
concurrent jurisdiction over these waters. Notwithstanding the
provisions of this subdivision, recreational vessels as defined in
section 2101 (34) of title 46 of the United States Code of less than two
hundred feet in length may be exempted from the compulsory state
pilotage requirement at the discretion of the board of commissioners of
pilots. Whenever the services of such a pilot are refused, the master,
owners or consignees shall pay pilotage as if one had been employed. The
pilotage authorized to be collected whenever a pilot shall be refused by
a vessel shall be sued for and recovered in the name of the pilot
tendering such service. Such pilotage, when recovered, shall belong to
and may be retained by such pilot for his own benefit and use.
Recreational vessels as defined in section 2101 (34) of title 46 of the
United States Code may be exempted from the compulsory state pilotage
requirement pursuant to this subdivision at the discretion of the board
of commissioners of pilots.
2. It shall be unlawful for any person not licensed as a Long
Island-Block Island Sound pilot under this article to pilot or to offer
to pilot any foreign vessel or any American vessel sailing under
register transiting the New York state waters of Long Island Sound or
Block Island Sound east of Execution Rocks or Sands Point including any
such vessel entering or departing from any port situated on the New York
state waters of Long Island Sound east of Execution Rocks or Sands
Point, and it shall likewise be unlawful for any master or person on
board a tug or towboat to tow such a vessel transiting the New York
state waters of Long Island Sound or Block Island Sound east of
Execution Rocks or Sands Point including any such vessel entering or
departing from any port situated on the New York state waters of Long
Island Sound east of Execution Rocks or Sands Point unless such vessel
shall have on board a Long Island-Block Island Sound pilot licensed
under this article. It shall be unlawful for any person not licensed as
a Long Island-Block Island Sound pilot under this article or under the
laws of any other state having concurrent jurisdiction to pilot or to
offer to pilot any foreign vessel or any American vessel under register
transiting the New York state waters of Long Island Sound and Block
Island Sound east of a line running southeasterly from the mouth of the
Byram River at the New York-Connecticut boundary to Oak Neck Point on
Long Island.
3. Violation of subdivision two of this section shall be a misdemeanor
punishable by a fine not exceeding one hundred dollars or by
imprisonment not exceeding sixty days. Any person employing such an
unlicensed person to act as pilot shall forfeit and pay the sum of one
hundred dollars to the board of commissioners of pilots.
4. (a) Every foreign vessel and every American vessel under register
transiting the New York state waters of Long Island Sound or Block
Island Sound east of Execution Rocks or Sands Point including any such
vessel entering or departing from any port situated on the New York
state waters of Long Island Sound east of Execution Rocks and Sands
Point shall be subject to pilotage fees, at the rates hereinafter
specified. Whenever the services of such a pilot are refused, the
master, owners or consignees shall pay pilotage as if one had been
employed. Such pilotage fees may be sued for and recovered in the name
of such pilot and may be retained by him for his own use and benefit. If
such pilot at the request of the master, owners, consignees or agent of
any vessel transiting the New York state waters of Long Island Sound or
Block Island Sound east of Execution Rocks or Sands Point anchors or
moors such vessel at any place on the waters of Long Island Sound or
Block Island Sound east of Execution Rocks or Sands Point, or if such
vessel be detained at quarantine, the same pilotage fees shall be
payable and the pilot entitled to his discharge.
(b) The following scale of charges shall be applicable:
(1) Upon the effective date of this paragraph and thereafter:
All vessels shall pay eight dollars and eighty-six cents per pilotage
unit; from January first, two thousand twenty-three until January first,
two thousand twenty-four all vessels shall pay nine dollars and
ninety-seven cents per pilotage unit; from January first, two thousand
twenty-four until January first, two thousand twenty-five, all vessels
shall pay ten dollars and twenty-seven cents per pilotage unit; from
January first, two thousand twenty-five until January first, two
thousand twenty-six all vessels shall pay ten dollars and fifty-eight
cents per pilotage unit; from January first, two thousand twenty-six
until January first, two thousand twenty-seven all vessels shall pay ten
dollars and eighty-nine cents per pilotage unit; on and after January
first, two thousand twenty-seven all vessels shall pay eleven dollars
and twenty-two cents per pilotage unit.
(2) A minimum charge calculated on two hundred pilotage units shall
apply to vessels of less than two hundred units of measurement. A
maximum charge calculated on five hundred pilotage units shall apply to
vessels of more than five hundred units of measurement.
(3) Pilotage units, as used in this subdivision, shall be determined
by multiplying the overall length of the vessel by the extreme breadth
by the depth to the uppermost continuous deck and dividing the total by
ten thousand, as expressed in the following formula:
Overall length x extreme breadth x depth
________________________________________________
10,000
equals pilotage units
(4) After entering Long Island Sound or Block Island Sound or before
departing therefrom, all vessels piloted for less than twenty-five miles
shall pay a transporting charge equal to two-thirds of the statutory
rate for registered vessels.
(5) A pilot detained on board a vessel at anchor or detained on board
a vessel at berth for more than two hours shall be paid at the rate of
twenty-five dollars per hour or fraction thereof.
(6) A pilot carried off on board a vessel by reason of bad weather or
any other cause shall be paid two hundred dollars per day during the
time of his detention. He shall also be awarded first class return
transportation at the earliest possible time.
(c) Definitions. "Overall length" is the distance between the forward
and after extremities of the vessel.
"Extreme breadth" is the maximum breadth to the outside of the shell
plating of the vessel.
"Depth" is the vertical distance at amidships from the top of the keel
plate to the uppermost continuous deck, fore and aft, and which extends
to the sides of the vessel. The continuity of a deck shall not be
considered to be affected by the existence of openings, including but
not limited to tonnage openings, engine spaces, or a step in the deck.
All measurements shall be in feet and inches (U.S.).
The board of commissioners of pilots shall be the sole arbiter with
respect to a question concerning these definitions. The decision by the
board shall be final.
(d) The measurements of overall length, extreme breadth, and depth as
previously defined, shall be made available to the pilot by the master
or his agent for the computation of pilotage fees. Failure to provide
the measurements so required shall subject the vessel to the maximum
pilotage charge.
5. The board of commissioners of pilots is hereby authorized to
execute an agreement with the appropriate state pilotage authority of
any state for establishment of a rotation system for the assignment of
pilots for the conduct of vessels in the ports and waters of the state,
including the waters of Long Island Sound.
Licensing of Sandy Hook pilots; apprenticeship. 1. No license
shall hereafter be granted to any person to act as pilot for the port of
New York by way of Sandy Hook or by the way of Sands Point or Execution
Rocks, unless the applicant shall have served an apprenticeship in the
New York Sandy Hook pilot service in the manner provided in this
section. Subject to the rules and regulations of the board of
commissioners, the executive committee of the United New York Sandy Hook
Pilots Benevolent Association (hereinafter designated the benevolent
association) shall have sole control over all apprentices and be charged
with the responsibility to instruct such apprentices in their duties as
Sandy Hook pilots. No other apprenticeship shall be accepted by the
commissioners. Application for apprenticeship may be made to the board
of commissioners on a form to be prescribed by such commissioners. The
qualifications necessary for an applicant to enter into an
apprenticeship shall be prescribed by rule or regulation of the board of
commissioners. The names of all persons accepted as apprentices shall be
registered in the books of the board of commissioners and certified to
the benevolent association in the order of their acceptance. Apprentices
shall serve at least four years apprenticeship. Each apprentice shall
be examined by the board of commissioners upon completion of his
apprenticeship and if found worthy and qualified may be licensed as a
New York Sandy Hook pilot in the lowest grade then established by the
commissioners. In the event a national or other emergency shall make it
imperative to the safe movement of vessels in and out of the port of New
York by the way of Sandy Hook or by the way of Sands Point or Execution
Rocks, that licenses to pilot such vessels be issued to persons who have
not served the apprenticeship herein prescribed, then in that event the
board of commissioners may issue temporary pilot licenses, other than
full branch licenses, to qualified persons to serve as Sandy Hook pilots
so long as the emergency continues or until the pilots so licensed can
be replaced by deputy pilots licenses after completion of the prescribed
term of apprenticeship.
2. The commissioners, or a majority of them, shall license for such
terms as they may think proper, as many pilots as they may deem
necessary to pilot ships to and from the port of New York by the way of
Sandy Hook or by the way of Sands Point or Execution Rocks and such
commissioners may specify in such licenses different degrees of
qualifications appropriate to different parts or branches of pilot duty,
according to the competency of the applicant. A license shall be denied
to any person holding any license or authority from or under the
authority of the laws of any other state.
Licensing of Hudson river pilots. The commissioners, or a
majority of them, shall license, for such terms as they may think
proper, as many pilots as they may deem necessary to pilot ships through
that portion of the Hudson river specified in this act, the continuation
of the Hudson river, and the main ship channel of the Upper bay, New
York harbor, east of a line from Robbins reef light to the tower at
Staten Island borough hall and down to the Verrazzano-Narrows Bridge,
and such commissioners may specify in such licenses different degrees of
qualifications appropriate to different parts or branches of pilot duty,
according to the competency of the applicant.
Licensing of Long Island-Block Island Sound Pilots. 1. The
commissioners, or a majority of them, shall license, for such terms as
they may think proper, as many pilots as they may deem necessary to
pilot ships transiting the New York state waters of Long Island Sound or
Block Island Sound east of Execution Rocks or Sands Point including any
such vessel entering or departing from any port situated in the New York
state waters of Long Island Sound east of Execution Rocks and Sands
Point and on the continuation of Long Island Sound to a line running
from the foot of City Island Avenue on City Island southerly to Stepping
Stones light, and such commissioners may specify in such licenses
different degrees of qualifications appropriate to different parts or
branches of pilot duty, according to the competency of the applicant.
2. Upon the taking effect of this chapter, all pilots who are then,
and have been for the two years immediately prior thereto, actively
engaged, as a regular occupation, in piloting seagoing vessels through
the waters specified in this chapter shall, upon application, be
licensed as full branch Long Island-Block Island Sound pilots for the
waters covered by this chapter if found by the commissioners to be
qualified in accordance with their regulations in effect on March
seventeenth, nineteen hundred seventy-one, except that any person who is
found to be so qualified who has reached his sixtieth birthday prior to
the effective date of this act shall be eligible to renew his license
until age seventy.
Examination of applicants. It shall be the duty of the
commissioners, before they shall grant a license to any person applying
therefor, to call such applicant before them, within one month
thereafter, and in the presence of one or more pilots licensed for the
waters regarding which such applicant seeks to be examined, who shall be
notified to attend, examine such applicant or cause him to be examined,
with relation to his qualifications for the office of pilot. In case of
the nonattendance of any licensed pilot so notified, the examination may
be conducted in his absence. Each applicant shall be examined in
particular touching his knowledge of the tides, soundings, bearings and
distances of the several shoals, rocks, bars and points of land and
night lights in the navigation for which he applies for a license to act
as a pilot, and also touching any other matter relating thereto which
the commissioners may deem proper. If upon the examination the person
so applying shall be found to be of good moral character and temperate
habits, and possessed of sufficient ability, skill and experience, the
commissioners may grant him a license.
Bond. Before granting any such license, the commissioners shall
require the applicant to furnish a bond to the people of this state,
with two sureties to be approved by such commissioners or a majority of
them, in a penalty not exceeding five hundred dollars. Such bond shall
be conditioned upon the diligent and faithful performance by such pilot
of his duties, and upon his obedience to the rules, regulations and
decisions of the commissioners of pilots. Every such bond shall be
prosecuted in the name of the people of the state of New York, by or in
behalf of the commissioners, provided a majority of them shall so
instruct, and if any amount be collected in such suit it shall be paid
to the commissioners, who may thereupon direct the same to be applied
for the purposes specified in subdivision two of section ninety-seven of
this article.
Suspension or revocation of licenses; suspension of pilots. 1.
If any pilot licensed under this article shall become intoxicated while
in charge of any ship or vessel as pilot, he shall forfeit his pilotage,
and be suspended from duty for six months, for the first offense. For
the second offense, he shall be deprived of his license and forever
thereafter be incapable of acting as a pilot. Such penalties or any
other forfeitures or penalties incurred by virtue of this article, or by
the rules and regulations of the board of commissioners made in
conformity with this article, shall not be imposed unless such pilot
shall have been first summoned.
2. The commissioners may suspend any pilot licensed under this article
at any time for any period they may deem proper, and may revoke and
annul any license which shall have been granted upon satisfactory proof
of negligence, carelessness, wilful dereliction of duty, or wilful
disobedience by such pilot of any lawful rule or regulation duly made
and promulgated by the commissioners. The pilot so suspended, at any
time, upon due notice, may appeal to the commissioners for a re-hearing
of his case, and such commissioners shall have power to confirm or
reverse the previous decision.
3. The board of commissioners may revoke or annul the license of any
Sandy Hook pilot who shall not be entitled to the use of such pilot
boats as shall have been approved by the commissioners.
4. It shall be the duty of the commissioners to hear and examine all
complaints duly made in writing against any pilot or person connected
with a pilot boat, for any misbehavior or neglect of duty, or breach of
their rules or regulations, which they shall deem material to be
investigated. They shall also hear and examine all complaints made in
like manner by any licensed pilot against any master, owner, or seaman
of a vessel, for any misbehavior toward such pilot in the performance of
his duty, or any breach of such rules or regulations.
5. Before any person shall be proceeded against on any complaint, and
before any pilot may be removed or suspended for longer than one month,
such person or pilot shall be notified, in writing, signed by the
secretary, to appear before the board of commissioners. Such notice,
which shall specify the nature and substance of such complaint and shall
be served personally at least five days before the time fixed for
appearance. The commissioners shall postpone or adjourn such hearing
from time to time for just cause. The certificate of such commissioners,
or of a majority of them, with proof of such service of notice, shall be
prima facie evidence that the party upon whom the notice was served, and
upon whom a fine or penalty was thereupon imposed, is liable to pay such
fine or penalty.
6. The secretary, under the supervision of the commissioners, and at
the instance either of the complaining or defending party, shall issue
subpoenas to compel the attendance of witnesses before the
commissioners, in all cases which they are empowered to hear and examine
under this article. The commissioners shall examine on oath, to be
administered by them, all such witnesses who in their opinion shall give
material testimony. A subpoena issued under this section shall be
regulated by the civil practice law and rules except that fees shall be
paid by the person on whose behalf the subpoena is issued.
7. Whenever any pilot shall be suspended, he shall forthwith deliver
up his branch or license to the board which shall retain it until the
time of suspension shall expire. Any such suspended pilot who shall
refuse to deliver up such branch or license shall be subjected to a
penalty of one hundred dollars for each and every such refusal.
Regulation of pilots and persons employing them. 1. The board of
commissioners may alter or amend any existing regulation for pilots, and
make, duly promulgate and enforce new rules or regulations, not
inconsistent with the laws of this state or of the United States, which
shall be binding and effective upon all pilots licensed under this
article, and upon all parties employing such pilots. The commissioners
may also regulate the stationing of pilot boats for the purpose of
putting pilots aboard and taking of them off vessels bound to and from
the port of New York and may designate the areas in which such vessels
shall be boarded and left by such pilots. Such commissioners may declare
and enforce forfeitures of pilotage upon any mismanagement or neglect of
duty by the pilots licensed by them. Such commissioners, in order to
prevent any of the pilots licensed by them from combining injuriously
with each other, or with other persons, and to prevent any person
licensed by them from acting as a pilot during his suspension, or after
his license has been revoked, may declare, impose and collect fines and
penalties not exceeding two hundred fifty dollars for each such offense.
The commissioners may also establish and enforce all other needful rules
and regulations for the conduct of the pilots licensed by them, and the
parties employing them. Such commissioners may enforce and receive
accounts of all moneys collected for pilotage by the pilots licensed by
them and may impose and collect from such pilots a sum not exceeding
three per centum on the amount thereof to defray their necessary
expenses, including clerk hire and office rent.
Miscellaneous provisions. 1. All actions and proceedings by the
board of commissioners to enforce any liability or to recover any fines,
penalties or forfeitures given by law to such officers, or to the board
of commissioners, may be brought and prosecuted by such officers in the
name of the board. Whenever, by law, any notice is required to be given
by such officers, or board, a notice signed by the president of the
board for the time being, and containing a copy of the provisions under
or pursuant to which such notice is given, shall be a sufficient
compliance with the requirements of the law in respect to the giving of
such notice, provided the commissioners ratify and adopt the same by a
majority vote, within twenty days after the giving of such notice. This
subdivision shall not apply to any notice required to be given in the
progress of any action or special legal proceedings.
2. It shall be the duty of the commissioners, out of any funds which
they may obtain to provide rewards to encourage the prompt relief of
disabled vessels and the speedy report of the same, and generally to
encourage not only the performance of duty, but efforts to relieve
vessels and passengers from distress or suffering.
3. The master of every vessel boarded by a pilot shall give such pilot
on boarding, an account of the draught of such vessel. If the draught
given is less than the actual draught, the master shall forfeit the sum
of twenty-five dollars, which may be sued for and recovered in an action
commenced in the name of the board of commissioners.
4. It shall be the duty of every branch and deputy pilot belonging to
the port to use his utmost endeavors to hail and to interrogate the
master of every vessel he shall discover entering the port in reference
to all matters necessary to enable such pilot to determine whether such
vessel is subject to quarantine.
5. If from the answers obtained from such inquiries it shall appear
that such vessel came from a port where any quarantinable disease
existed at the time of her departure, or that any case of such disease
shall have occurred on board during the passage, the pilot shall
immediately direct the master of the vessel to proceed to and anchor at
the quarantine anchorage. In other cases of vessels liable to
quarantine, he shall direct the masters thereof to proceed and anchor at
such point as shall be assigned by the federal health officer as an
anchorage for such vessels.
6. The fees for the piloting of vessels over intermediate distances
within the waters subject to pilotage regulations under this article and
the amounts to be paid for detention of said pilots shall be established
by the board of commissioners.
7. A pilot who is carried to sea on a vessel by reason of heavy
weather or any other cause shall receive compensation of two hundred
dollars a day, his expenses shall be paid, and he shall be provided with
first class return transportation at the earliest possible time. The
compensation and costs shall be paid by the vessel, its owner, master,
charterer or agent.
8. The master, owner, or consignee of any ship, or vessel, to whom any
pilot shall have rendered, upon the master's request any extra service
for the preservation of such ship or vessel while in distress shall pay
such pilot, in addition to the pilotage fees provided by this article,
such amount for extra services as the board of commissioners shall
determine to be a reasonable reward.
9. Pilotage fees as provided in this article shall be payable by the
master, owner, consignee, or agent entering or clearing the vessel at
the port of New York, who shall be jointly and severally liable
therefor.
Application of article. The provisions of this article shall not
apply to vessels navigating under a coastwise license and employed in
the coasting trade. If, however, any such vessel shall employ a pilot
licensed under the provisions of this article, such pilot shall be
entitled to receive as compensation for his services pilotage fees in an
amount not to exceed the rates established by this article.
ARTICLE 7 Motor Boat Regulation On the St Lawrence River
Definitions. Within the provisions of this article, the words
"motor boat" shall be deemed to mean and include a mechanically
propelled pleasure vessel having a source of power other than steam.
The words include a craft, temporarily or permanently equipped with
detachable motors, commonly known as an "outboard" motor boat.
Motor boat regulation zone. As soon as practicable, the
commissioner shall place on the mainland at some convenient point at or
near the water's edge at Fishers Landing, Jefferson county, New York,
and not more than one mile westerly thereof, a signboard facing the
water and bearing thereon in large characters the words "St. Lawrence
river boat regulation zone, west limit." He shall in like manner place a
similar signboard at some convenient place at or near the water's edge
and facing the water on the mainland easterly of Alexandria Bay and
within one mile easterly thereof and southeasterly of the United States
government lighthouse in the waters of said river, known as Sunken Rock
Light, except that the words "east limit" shall appear in the place of
"west limit". If necessary, he may acquire for the state, by agreement
with the owners of the lands affected, easements for such purposes. That
portion of the waters of the Saint Lawrence river northerly of the
mainland of Jefferson county and southerly of the international boundary
line between the United States and Canada and easterly of a line drawn
northwesterly from the marker hereinbefore referred to at Fishers
Landing and westerly of a line drawn from the marker hereinbefore
referred to easterly of Alexandria Bay, and running in a northwesterly
direction through the said Sunken Rock Light, shall constitute a motor
boat regulation zone for the purpose of this article. The expense
attached to the performance of the foregoing duties shall be payable
from moneys that may be available therefor by appropriation and from
moneys, if any, contributed by persons interested. Such zone shall be
deemed established and the rules prescribed by this article shall be
applicable when such poles or markers and signs shall be installed, and
not before.
Rules governing the operation of motor boats. The following
rules for the operation of motor boats within such zone are hereby
established: 1. No motor boat shall be operated within a harbor line at
a speed exceeding five miles per hour. The waters of the Saint Lawrence
river lying southerly of Wells Island and northwesterly of a line drawn
from the easterly tip of Wells Island beginning at a point known as "The
Chalet" and easterly and southerly of Saint Elmo Island and continuing
southerly of Dewey Island, Nobby Island, and, terminating at the
steamship dock, southerly of a point known as "Hope Well Hall"; and the
waters of the Saint Lawrence river lying northerly of the mainland of
the town of Alexandria, Jefferson county, New York, and southerly of a
line drawn from the point of land beginning on the mainland known as
Bonne Castle and northerly of Squaw Island to the southwesterly part of
Cuba Island, shall constitute harbors for all the purposes mentioned in
this article.
2. Every person operating a motor boat shall at all times operate the
same in a careful and prudent manner and at such a rate of speed as not
to endanger the property of another or the life or limb of any person.
3. No motor boat shall be operated in a reckless manner. Reckless
operation shall include operating a motor boat in a manner which
unnecessarily interferes with the free and proper use of the waters of
said river, or unnecessarily endangers other craft therein, or the life
or limb of any person.
4. No motor boat shall be operated during the period from one-half
hour after sunset to one-half hour before sunrise at a greater speed
than fifteen miles per hour. No motor boat shall be operated during the
period from one-half hour before sunrise to one-half hour after sunset
at a greater speed than thirty miles per hour.
The provisions of this section shall not apply to any motor boat while
actually competing in a race held under the auspices of a racing
association, chamber of commerce or duly incorporated yacht club.
The provisions of this section are intended to supplement other
provisions of this chapter and applicable regulations. The more
restrictive provision should be applied if more than one law or rule
could be applied to a given situation.
Violations. (a)(1) Any person who violates any of the
provisions of section one hundred two of this article or any local law,
ordinance, order, rule or regulation adopted pursuant to this article,
shall be guilty of a violation unless such conduct is declared to be a
misdemeanor or a felony pursuant to this chapter or any other law of
this state.
(2) Every person convicted of a violation of any of the provisions of
this article or of any ordinance, order, rule or regulation adopted
pursuant to this article for which another penalty is not provided shall
for a first conviction thereof be punished by a fine of not less than
twenty-five nor more than one hundred dollars or by imprisonment for not
more than seven days or by both such fine and imprisonment; for a
conviction of a second violation, both of which were committed within a
period of twenty-four months, such person shall be punished by a fine of
not less than one hundred nor more than two hundred fifty dollars or by
imprisonment of not more than fifteen days or by both such fine and
imprisonment; upon a conviction for a third or subsequent violation, all
of which were committed within a period of twenty-four months, such
person shall be punished by a fine of not less than two hundred dollars
nor more than five hundred dollars or by imprisonment for not more than
thirty days or by both such fine and imprisonment.
(b) The court shall suspend a person's privilege to operate and may
suspend a vessel registration:
(1) for a period of six months where a person is convicted of reckless
operation of a vessel pursuant to any applicable provision of this
article after having been convicted of any such offense within the
preceding eighteen months;
(2) for a period of six months upon a third or subsequent conviction
for any violation of any law, ordinance or regulation limiting the speed
of a vessel or any provision constituting a misdemeanor by this article
except for the commission of a third or subsequent misdemeanor as set
forth in paragraph three of this subdivision;
(3) for a period of twelve months where a person is convicted of
reckless operation of a vessel pursuant to any applicable provision of
this article after having been twice convicted of any such offense
within the preceding eighteen months.
(c) When a person is convicted pursuant to this article and is subject
to a suspension pursuant to this subdivision, the court shall, in
addition to any other penalties invoked under this article, require the
convicted person, as a condition of the sentence, to complete a boating
safety course of the state, U.S. Power Squadrons, U.S. Coast Guard
Auxiliary, or a powerboating course or courses offered by the United
States sailing association which are approved by the commissioner and
show proof of successful completion of such course to the court or its
designee.
Defacing or removing serial numbers or identification marks on
outboard motors. Any person who: 1. Wilfully, removes, defaces, covers,
alters or destroys the manufacturer's serial number or any other
distinguishing number or identification mark on any outboard motor, or
2. Knowingly buys, sells, receives, disposes of, conceals or knowingly
has in his possession any outboard motor, from which the manufacturer's
serial number or any other distinguishing mark or identification mark
has been removed, defaced, covered, altered or destroyed for the purpose
of concealment or misrepresenting the identity of the said outboard
motor is guilty of a class A misdemeanor.
ARTICLE 8 Ferries
Licenses. The local governing body of each county or city in
this state may grant licenses for keeping ferries in their respective
counties and cities, to such persons as the respective local governing
body may deem proper, for a term not exceeding five years. No license
shall be granted to a person, other than the owner of the land through
which that part of the highway adjoining the ferry shall run, unless the
owner is not a suitable person or shall neglect to apply after being
served with eight days' written notice from such person of the time and
place at which he will apply for such license, or having obtained such
license, shall neglect to comply with the conditions of the license or
maintain the ferry. Every license shall be entered in the book of
minutes of the appropriate local governing body by the clerk; and a
certified copy thereof shall be delivered to the person licensed. When
the waters over which any ferry may be used shall divide two counties or
cities, or a county and city, a license obtained in either of the
counties or cities shall be sufficient to authorize transportation of
persons, goods, wares and merchandise, to and from either side of such
waters.
Undertaking. Every person applying for such license shall,
before the same is granted, execute and file with the clerk of the local
governing body of a county or city his undertaking with one or more
sureties, approved by such local governing body, to the effect that he
will attend such ferry with sufficient and safe boats and other
implements, and so many persons to work the same as shall be necessary
during the several hours in each day, and at such rates as such local
governing body shall direct.
Appendages for rope ferries. Any person licensed to keep a
ferry may, with the written consent of the town superintendent of the
town where such ferry may be, erect and maintain within the limits of
the highway, at such point as shall be designated in such consent, a
post or posts, with all necessary braces and appendages for a rope
ferry.
When schedules to be posted. Every person licensed to operate
or control any ferry in this state, or between this state and any other
state, operating from or to a city of fifty thousand inhabitants or
over, shall post in a conspicuous and accessible position outside and
adjacent to each entrance to such ferry, and in at least four accessible
places, in plain view of the passengers upon each of the boats used on
such ferry, a schedule plainly printed in the English language of the
rates of ferriage charges thereon, and authorized by law to be charges
thereon, and authorized by law to be charged for ferriage over such
ferry. If any such person shall fail to comply with the provisions of
this section, or shall post a false schedule, he shall forfeit the sum
of fifty dollars for each day's neglect or refusal to post such schedule
or any of them, to be recovered by any person who shall sue therefor in
any court of competent jurisdiction.
Ferries. A person who:
1. Maintains a ferry for profit or hire upon any of the waters of this
state without authority of law; or
2. Having entered into a recognizance to keep or maintain a ferry,
violates the condition of such recognizance,
Is guilty of a misdemeanor.
Where such ferry is upon waters dividing two counties, the offender
may be prosecuted in either county.
Ferries and ferry terminal. In the event that a village is
disconnected geographically by water from the mainland of the state and
which is not connected by any bridge or viaduct wholly or partly within
its corporate limits with such mainland, the board of trustees of a
village may acquire, by purchase, lease, charter, new construction or
otherwise, and provide, maintain and operate a ferry or ferries,
together with the necessary boats and terminals therefor, for the
transportation of passengers, express matter and freight between said
village and the adjacent mainland of the state, during the whole or such
portion or portions of the year, and may charge such rates therefor, as
it may deem advisable, and each such village shall have the right to
spend money for said purposes or any of them. Before operating any ferry
or ferries, the village shall obtain such license or permission from the
branch or branches of the United States government having jurisdiction
over the navigable waters in which such ferry or ferries shall operate,
as may be necessary or required, but notwithstanding any other provision
of law, it shall not be necessary for any such village to obtain license
or other permission for the operation of such ferry or ferries from any
other body politic or court of the state of New York. For the purpose of
this subdivision the mainland of Long Island shall be considered part of
the mainland of the state of New York.
The provisions of this section shall be controlling notwithstanding
any contrary provisions of law.
Ferry service. A village which owns property which is
disconnected geographically by water from the mainland area of the
village and the mainland of the state, which such property is not
connected by any bridge or viaduct with such mainland area, may acquire,
by purchase, lease, charter, new construction or otherwise, and provide,
maintain and operate a ferry or ferries, together with the necessary
boats and terminals therefor, or may provide ferry service by contract
upon such terms and conditions as prescribed by the village board, for
the transporation of passengers, express matter and freight between such
property and such mainland area, during the whole or such portion or
portions of the year, and may charge or agree to such rates therefor, as
it may deem advisable, and each such village shall have the right to
spend money for such purposes or any of them. Before operating any ferry
or ferries, the village shall obtain such license or permission from the
branch or branches of the United States government having jurisdiction
over the navigable waters in which such ferry or ferries shall operate,
as may be necessary or required, but notwithstanding any other provision
of law, it shall not be necessary for any such village to obtain license
or other permission for the operation of such ferry or ferries from any
other body politic or court of the state of New York. For the purpose of
this subdivision the mainland of Long Island shall be considered part of
the mainland of the state of New York.
The provisions of this section shall be controlling notwithstanding
any contrary provisions of law.
ARTICLE 9 Rivers and Streams As Public Highways
Dams and bridges. No dam shall be erected on any river or
stream in this state, recognized by law or use as a public highway for
the purpose of floating and running lumber, logs or other timber, over
or upon the same, unless there be built in such dam an apron, at least
fifteen feet in width, in the middle of the current of such river or
stream, of a proper slope for the safe passage of lumber, logs and other
timber. No bridge shall be built over any such river or stream in such a
manner as to obstruct or prevent the free and uninterrupted passage of
lumber, logs and other timber down and along such river or stream.
Booms and other obstructions to be opened on notice; penalty
for failure. Every person who shall build any boom or other obstruction
in the waters of any river or stream, for the purpose of stopping or
securing lumber, logs or other timber shall within ten days after the
receipt of a written notice from any person who shall have lumber, logs
or other timber to transport on such river or stream, open such boom or
remove such obstruction or part thereof so as to permit the assorting
and passage of such lumber, logs and other timber through and down such
river or stream. Every person who wilfully obstructs, by booms or
otherwise, the channel of any river or stream so as to hinder or delay
the free passage of lumber, logs or timber over or through the same,
shall be liable to a penalty of fifty dollars for each day of the
continuance of such obstruction, to be recovered by the person aggrieved
thereby, and in addition to such penalty, shall be liable for all
damages caused by such obstruction.
Acquisition for public use. Any person desiring to use a river
or stream in this state, which is or shall be recognized by law or use
as a public highway, for running logs, timber or wood, by floating or
flooding, may institute proceedings for the acquisition of the rights of
riparian owners on such river or stream, to the extent that may be
necessary, for the public use thereof as a highway for such purpose,
pursuant to the provisions of the eminent domain procedure law.
Marks on logs and timber to be recorded. Every person who shall
run any logs or timber down any river or stream recognized by law or use
as a public highway shall select some mark different from any mark
previously recorded, and shall put the same on each log or stick of
timber in some conspicuous place, and shall cause such mark to be
recorded in the county clerk's office of each county in or through which
such river or stream runs. The county clerk shall be entitled to the sum
of fifty cents for recording such mark, to be paid by the person having
the same recorded, and a copy of said entry, certified by the clerk,
shall be presumptive evidence that the logs or timber so marked are the
property of the person by whom such mark was selected and recorded.
Defacing marks on logs or lumber. A person who (a) unlawfully
cuts out, alters, or defaces any mark, made on any log or lumber
floating in any of the waters of this state or lying upon land, whether
or not such mark be recorded pursuant to the provisions of the
navigation law, or (b) puts a false mark on any such log or lumber, is
guilty of a misdemeanor.
Persons prohibited from landing logs, timber or lumber. No
person shall stop, take up or draw to, or lodge on the shore of any
river or stream used for floating logs, timber or lumber, or on any
island therein, any lumber, logs, timber, boards or planks floating in
such river or stream, without the consent of the owner thereof. Any
person violating the provisions of this section shall for each violation
forfeit to the person aggrieved thereby the sum of ten dollars, and in
addition thereto shall be liable to the owner of such logs, timber or
lumber for all damages sustained thereby.
Application of article. This article shall not apply to the
Hudson river, the Allegheny river and its tributaries, nor the Delaware
river and its tributaries, nor the waters located in Franklin county,
nor the Oswegatchie river and its tributaries, nor the Grasse river and
its tributaries, nor the Raquette river and its tributaries, nor the
West Canada creek and its tributaries, nor the Black river and its
tributaries above its junction with the Moose river; nor be construed to
repeal any existing law now applicable to any creek or river in the
state.
ARTICLE 10 Wrecks
Powers and duties of sheriff. The sheriff of every county in
which any wrecked property shall be found, when no owner or other person
entitled to the possession of such property shall appear, shall
severally take all necessary measures for saving and securing such
property; take possession thereof, in whose hands soever the same may
be, in the name of the people of the state; cause the value thereof to
be appraised by disinterested persons, and keep the same in some safe
place to answer the claims of the persons entitled thereto.
Applicability to abandoned historic shipwrecks. This article
deals with recovery and salvage of only those wrecks which are not
abandoned historic shipwrecks.
Sale of wreck. If the property so saved shall be perishable, so
as to render the sale thereof expedient, the officer, in whose custody
the same shall be, shall apply to the county court of the county, or the
city court of the city, where such property may be, by a verified
petition stating the facts, for an order authorizing such sale; if the
court shall be satisfied that a sale of the property would be most
beneficial to the parties interested, it shall make the order so applied
for, and the officer having custody of the property shall sell the same
at public auction, at the time and in the manner specified in the order,
and the proceeds of such sale, deducting the expenses allowed by the
courts, shall be paid to the treasurer of the county in which the
property shall have been found.
Delivery of wreck or proceeds to claimant. If, within a year
after such wrecked property shall have been found and saved, any person
shall claim the same or the proceeds thereof, as owner or consignee, or
the agent of the owner or consignee, and shall establish his claim by
evidence, such court shall make an order directing the officer, in whose
possession the property or its proceeds shall be, to deliver or pay the
same to the claimant, upon the payment by him of a reasonable salvage,
and all necessary expenses incurred in the preservation and keeping of
the property.
Claimant's undertaking. No such order shall, however, be made
unless the claimant shall deliver to such court an undertaking with one
or more sufficient sureties to be approved by the court, such claimant
or his representative, within two years after the date of the
undertaking, by any person, establishing his title as owner of such
property or proceeds. The undertaking shall be filed in the clerk's
office of the county in which it shall be taken.
When owner may sue. The rejection by the court of any claim for
wrecked property shall not preclude the claimant from maintaining an
action for the recovery of such property or its proceeds against the
officer in whose hands the same shall be; but if the plaintiff in any
such action shall prevail, there shall be deducted, in addition to the
salvage and expenses charged on the property, from the damages
recovered, the costs of the defense.
Claim for salvage. Every officer to whom any order duly made,
for the delivery of the wrecked property, or its proceeds, shall be
directed, shall present to the claimant exhibiting such order a written
statement of the claims for salvage and expenses on such property and
proceeds. If the claimant shall refuse to allow such claims, the amount
of such salvage and expenses shall be adjusted in the manner hereinafter
provided, and, after the payment or tender of the payment of such
salvage and expenses, as agreed to or adjusted, the officer, in whose
custody such property or proceeds shall be, shall deliver or pay the
same, according to the terms of the order directed to him.
Detention of wreck. All sheriffs, and all persons employed by
them, and all other persons aiding and assisting in the recovery and
preservation of wrecked property, shall be entitled to a reasonable
allowance as salvage for their services, and to all expenses incurred by
them in the performance of such services, out of the property saved, and
the officer having the custody of such property shall detain the same
until such salvage and expenses shall be paid and the salvage claimed in
any case shall not exceed one-half of the value of the property or
proceeds, and every agreement, order or adjustment allowing a greater
salvage shall be void.
Appointment of appraisers. If the amount of salvage and
expenses on property saved shall not be adjusted by agreement of the
parties, the owner or consignee of such property, or the master or
supercargo, having charge thereof at the time the same was wrecked, or a
claimant having an order for its delivery, may apply to the county court
of the county or the city court of a city in which such property shall
be, for the appointment of suitable persons as appraisers, to adjust the
amount of such salvage and expenses; and such court shall, by an order,
appoint three disinterested freeholders of the county, not inhabitants
of the town in which the property shall have been saved to adjust such
salvage and expenses, who, before they shall enter upon the performance
of their duties, shall be sworn to perform faithfully and impartially
the duties of their trust. They shall have power to issue compulsory
process for the attendance of witnesses, and to administer oaths to all
witnesses who shall attend or be produced; and the written decision of
the appraisers, or any two of them, as to the amount of salvage and
expenses, and the sum to be paid to each person entitled to share in
such salvage, or claiming such expenses, shall be final and conclusive.
The fees and expenses of the appraisers shall be paid by the person upon
whose application they shall have been appointed, and shall be a charge
upon the property saved. Each appraiser shall be entitled to five
dollars for each day's necessary attendance and expenses.
Sale and disposition of property. 1. If within a year after
wrecked property shall have been saved, no person shall have appeared to
claim the same, or if the salvage and expenses on such property shall
not have been paid within three months after the same shall have been
adjusted, or an action for the recovery of the property shall have been
commenced, the officer in whose custody the property shall be shall sell
the same at public auction, and pay the proceeds of such sale, deducting
salvage and expenses, to the state comptroller pursuant to the
provisions of section thirteen hundred seven of the abandoned property
law for the benefit of the parties interested; but in no case shall any
deduction of salvage and expenses be made unless the amount thereof
shall have been adjusted upon due proof, by an order of such county or
city court, a copy of which order and of the evidence in support thereof
shall be transmitted by the court making it to the comptroller.
2. If the property has been sold as perishable, pursuant to the
provisions of section one hundred thirty-one, the balance of the
proceeds, after deducting the salvage and expenses as adjusted, shall be
paid by the county treasurer to the state comptroller as provided in
section thirteen hundred seven of the abandoned property law.
Publication of notice of wrecked property. Every sheriff, into
whose possession any wrecked property shall come, shall immediately
thereafter publish a notice directed to all parties interested, for at
least four weeks in succession, in one or more of the newspapers
published in the county where the property shall have been saved. Every
such notice shall contain a minute description of such wrecked property,
and every bale, bag, box, cask, piece or parcel thereof, and of the
marks, brands, letters and figures on each, and shall state where such
wrecked property then is, and its actual condition, and the name, if
known, of the vessel from which it was taken or case on shore, and of
the master and supercargo of such vessel, and the place where such
vessel then is, and its actual condition. The expense of publishing
every notice required to be published relating to wrecks shall be
charged on the property or proceeds to which it relates.
Keeping wrecked goods a misdemeanor. A person who takes away
goods or other property not his own from a stranded vessel, or any goods
or other property cast by the sea upon the land or found in a bay or
creek, or who knowingly becomes possessed of any such goods or other
property, and does not deliver the same, within forty-eight hours
thereafter, to the sheriff or one of the coroners or wreck masters of
the county where the same was found, is guilty of a misdemeanor.
Defacing marks upon wrecked property. A person who defaces or
obliterates the marks upon wrecked property, or in any manner disguises
the appearance thereof, with intent to prevent the owner from
discovering its identity, or who destroys or suppresses any invoice,
bill of lading or other document tending to show the ownership thereof,
is guilty of a misdemeanor.
Officer unlawfully detaining wrecked property. An officer,
whose duties pertain in any way to wrecked property, who, without
authority of law, detains such property or proceeds thereof, after the
salvage and expenses chargeable thereon have been paid or offered to
him, or who is guilty of any fraud in the discharge of such duties, is
guilty of a misdemeanor.
ARTICLE 11 Improvement and Preservation of Waterways
Definitions. As used in this article, the following terms shall
mean and include: (a) Municipality. A county, city, town, or village; a
county, city, town or village on behalf of an improvement district; or
any two or more of the foregoing which are acting jointly in connection
with a project.
(b) Federal government. The federal government or any agency or
officer thereof.
(c) Harbor of refuge. A harbor or navigational improvement designed
primarily to enhance recreational boating, which is constructed or
improved by the federal government and which requires state
participation.
(d) Local marine facility. A harbor or navigational improvement
designed primarily to enhance recreational boating, a facility
appurtenant or incidental thereto, or a facility appurtenant or
incidental to a harbor of refuge, which is constructed or improved by a
municipality.
(e) State marine facility. A harbor or navigational improvement which
is designed to enhance recreational boating, a facility appurtenant or
incidental thereto, a facility appurtenant or incidental to a harbor of
refuge, a storm alert system or components thereof, navigational aides,
and any other similar capital improvement designed primarily to enhance
recreational boating, which is constructed or improved by the
commissioner.
(f) Marine project or project. A harbor of refuge, local marine
facility or state marine facility, as the case may be.
Offenses against the navigation law. Any person having the
charge, command or control of a vessel who:
1. Carries or permits a vessel to carry a greater number of passengers
than is stated in the certificate of inspection of such vessel issued
under section sixty-three of this chapter; or
2. Neglects to carry on a vessel the equipment required by section
sixty-seven of this chapter; or
3. Neglects to carry on a vessel the fire pump required by section
fifty-six of this chapter; or
4. Violates any other provision of this chapter; or for which no other
punishment is prescribed, is guilty of a misdemeanor.
Harbors of refuge. (a) The commissioner, on behalf of the
state, is hereby authorized to enter into agreements with the federal
government and with municipalities, and municipalities are hereby
authorized to enter into agreements with the commissioner, concerning
the construction, operation and maintenance of harbors of refuge.
(b) In any such agreement with the federal government the state may
agree to pay, within amounts appropriated therefor as allocated by the
director of the budget, a portion of the cost of construction of a
harbor of refuge, except (1) that no moneys shall be expended for the
project unless the federal government has similarly appropriated and
made available funds for the project, and (2) no agreement shall be
entered into hereunder with the federal government unless a municipality
has agreed to reimburse the state in an amount determined pursuant to
subdivision (c) of this section, or unless the harbor of refuge is
constructed or improved in conjunction with a state park or state marine
facility.
(c) (i) Any agreement with a municipality pursuant to this section
shall include a provision requiring operation and maintenance of the
project by the municipality, except when the federal government shall
determine to operate and maintain the project.
(ii) In any such agreement with a municipality, the municipality shall
agree to reimburse the state, upon completion of the project, in an
amount equal to fifty per cent of the non-federal share of the cost of
the project; provided, however, subject to the prior authorization and
approval of the governor, the commissioner may, where there is a
demonstrated financial hardship on the municipality and certified as
such by the governing body of such municipality, enter into an agreement
with the municipality providing for reimbursement of the state in an
amount less than fifty per cent of the non-federal share of the cost of
the project.
(iii) Whenever two or more municipalities agree to participate in a
project, such municipalities, by agreement with the commissioner and
each other, shall agree to an equitable share of the local share of the
non-federal share of the cost of the project which each shall pay to the
state upon completion of the project.
(iv) For the purpose of reimbursing the state for the local share of
the non-federal share of the cost of a project each participating
municipality is hereby authorized to determine that its share shall be a
general charge against all taxable real property located therein, or
shall be borne as a special assessment upon the real property benefited
thereby, or partly as a general charge and partly as such a special
assessment, and each such participating municipality shall have power to
finance its share by the issuance of obligations pursuant to the local
finance law. In the event a municipality shall fail to pay to the state
the municipality's share of the cost of a project within six months of
the certification to the municipality by the state comptroller of the
amount of such share, the state comptroller shall cause to be withheld
from state assistance to which the municipality would otherwise be
entitled, a sum sufficient to reimburse the state for any amount
remaining unpaid, together with interest on any such unpaid amount at
the rate of three per cent per annum from the date of such
certification. Such moneys so withheld shall be credited against the
amount payable to the state by such municipality on account of such
project.
(d) This section shall not apply to facilities incidental to a project
which are not constructed by the federal government, whether or not such
facilities may be required by the federal government as a prerequisite
for federal participation; such facilities shall be governed by section
one hundred forty-two or section one hundred forty-three of this article
as the case may be.
Local marine facilities. (a) The commissioner is hereby
authorized to enter into agreements with municipalities, and
municipalities are hereby authorized to enter into agreements with the
commissioner, concerning the construction, operation and maintenance of
local marine facilities, including local marine facilities incidental to
a harbor of refuge.
(b) Any such agreement shall include a provision for the construction
of the facility, either by the municipality or by the state on behalf of
the municipality, in accordance with plans approved by the commissioner,
and any such agreement shall include a provision requiring operation and
maintenance of the facility by the municipality.
(c) In any such agreement the state may agree, within amounts
appropriated therefor as allocated by the director of the budget, to pay
to the municipality an amount to be determined by the commissioner not
to exceed the lesser of (1) seventy-five per cent of the cost of the
facility, less any federal assistance received or to be received for the
facility and (2) fifty per cent of the cost of the facility; except that
when the facility is constructed by the state on behalf of the
municipality, the municipality shall agree to reimburse the state in an
amount to be determined by the commissioner not to be less than the cost
of the facility less the sum of (1) any federal assistance received or
to be received for the facility and (2) the lesser of (i) seventy-five
per cent of the cost of the facility, less any federal assistance
received or to be received for the facility and (ii) fifty per cent of
the cost of the facility. Whenever two or more municipalities agree to
participate in a project, such municipalities, by agreement with the
commissioner and each other, shall agree to an equitable sharing of the
local share of the cost of the project.
(d) In the event a municipality shall fail to pay to the state the
municipality's share of the cost of a facility constructed by the state
on behalf of the municipality within six months of the certification to
the municipality by the state comptroller of the amount of such share,
the state comptroller shall cause to be withheld from state assistance
to which such municipality would otherwise be entitled, a sum sufficient
to reimburse the state for any amount remaining unpaid, together with
interest on any such unpaid amount at the rate of three per cent per
annum from the date of such certification. Monies so withheld shall be
credited against the amount of principal and interest payable by such
municipality for its share of the cost of the facility.
State marine facilities. The commissioner is hereby authorized,
within amounts appropriated therefor as allocated by the director of the
budget, to construct, reconstruct, improve, operate and maintain state
marine facilities, including state marine facilities incidental to a
harbor of refuge.
Rules and regulations. The commissioner may adopt rules and
regulations governing approval, financing, construction, maintenance and
operation of projects.
ARTICLE 12 Oil Spill Prevention, Control, and Compensation
PART 1 General Provisions
Legislative intent. The legislature finds and declares that New
York's lands and waters constitute a unique and delicately balanced
resource; that the protection and preservation of these lands and waters
promotes the health, safety and welfare of the people of this state;
that the tourists and recreation industry dependent on clean waters and
beaches is vital to the economy of this state; that the state is the
trustee, for the benefit of its citizens, of all natural resources
within its jurisdiction; and that the storage and transfer of petroleum
between vessels, between facilities and vessels, and between facilities,
whether onshore or offshore, is a hazardous undertaking and imposes
risks of damage to persons and property within this state.
The legislature finds and declares that the discharge of petroleum
within or outside the jurisdiction of this state constitutes a threat to
the economy and environment of this state. The legislature intends by
the passage of this article to exercise the powers of this state to
control the transfer and storage of petroleum and to provide liability
for damage sustained within this state as a result of the discharge of
said petroleum by requiring prompt cleanup and removal of such pollution
and petroleum, and to provide a fund for swift and adequate compensation
to resort businesses and other persons damaged by such discharge.
Purposes. It is the purpose of this article to ensure a clean
environment and healthy economy for the state by preventing the
unregulated discharge of petroleum which may result in damage to lands,
waters or natural resources of the state by authorizing the department
of environmental conservation to respond quickly to such discharges and
effect prompt cleanup and removal of such discharges, giving first
priority to minimizing environmental damage, and by providing for
liability for damage sustained within the state as a result of such
discharges.
Definitions. Unless the context clearly indicates otherwise,
the following terms shall have the following meanings:
1. "Administrator" means the chief executive, within the department of
audit and control, of the New York environmental protection and spill
compensation fund;
2. "Barrel" means forty-two United States gallons, or 159.9 liters, at
sixty degrees fahrenheit;
2-a. "Biological additives" means microbiological cultures, enzymes,
or nutrient additives that are deliberately introduced into a petroleum
discharge for the specific purpose of encouraging biodegradation to
mitigate the effects of the discharge.
3. "Claim" means, for purposes of part three of this article, any
claim of the fund or any claim by an injured person, who is not
responsible for the discharge, seeking compensation for cleanup and
removal costs incurred or damages sustained as a result of a petroleum
discharge;
3-a. "Burning agents" means additives that, through physical or
chemical means, improve the combustibility of the materials to which
they are applied.
3-b. "Chemical agents" means generally those elements, compounds or
mixtures that coagulate, disperse, dissolve, emulsify, foam, neutralize,
precipitate, reduce, solubilize, oxidize, concentrate, congeal, entrap,
fix, make the pollutant mass more rigid or viscous, or otherwise
facilitate the mitigation of deleterious effects or removal of the
pollutant or petroleum from the water.
4. "Cleanup and removal" means the (a) containment or attempted
containment of a discharge, (b) removal or attempted removal of a
discharge or, (c) taking of reasonable measures to prevent or mitigate
damages to the public health, safety, or welfare, including but not
limited to, public and private property, shorelines, beaches, surface
waters, water columns and bottom sediments, soils and other affected
property, including wildlife and other natural resources;
5. "Cleanup and removal costs" means all costs associated with the
cleanup and removal of a discharge including relocation costs pursuant
to section one hundred seventy-seven-a of this article incurred by the
state or its political subdivisions or their agents or any person with
approval of the department;
6. "Commissioner" means the commissioner of the department of
environmental conservation, unless otherwise indicated;
6-a. "Containment boom" means a floating or stationary device composed
of plastic, natural or synthetic materials which can be mechanically
extended over water or permanently stationed over water for the purposes
of containing floating petroleum, solid objects or other pollutants
within or outside a particular area;
7. "Department" means the department of environmental conservation,
unless otherwise indicated;
8. "Discharge" means any intentional or unintentional action or
omission resulting in the releasing, spilling, leaking, pumping,
pouring, emitting, emptying or dumping of petroleum into the waters of
the state or onto lands from which it might flow or drain into said
waters, or into waters outside the jurisdiction of the state when damage
may result to the lands, waters or natural resources within the
jurisdiction of the state;
8-a. "Dispersant" means chemical agents that emulsify, disperse, or
solubilize petroleum into the water column or promote the surface
spreading of petroleum slicks to facilitate dispersal of the petroleum
into the water column.
9. "Fund" means the New York environmental protection and spill
compensation fund;
10. "License fee period" means every calendar month on the basis of
which the licensee is required to report under this article;
11. "Major facility" includes but is not limited to any refinery,
storage or transfer terminal, pipeline, deep water port, drilling
platform or any appurtenance related to any of the preceding that is
used or is capable of being used to refine, produce, store, handle,
transfer, process or transport petroleum. A vessel shall be considered a
major facility only when petroleum is transferred between vessels. A
vessel that would not otherwise be considered a major facility shall not
be considered a major facility based solely upon its rendering of care,
assistance or advice consistent with the national contingency plan or as
otherwise directed by the federal on-scene coordinator or by the
commissioner or his designee, in response to a discharge of petroleum
into or upon the navigable waters. Facilities with total combined
above-ground or buried storage capacity of less than four hundred
thousand gallons are not major facilities for the purposes of this
article;
12. "Natural resources" means all land, fish, shellfish, wildlife,
biota, air, waters and other such resources;
13. "Owner" or "operator" means with respect to a vessel, any person
owning, operating or chartering by demise such vessel; with respect to
any major facility, any person owning such facility, or operating it by
lease, contract or other form of agreement; with respect to abandoned or
derelict major facilities, the person who owned or operated such
facility immediately prior to such abandonment, or the owner at the time
of discharge;
14. "Person" means public or private corporations, companies,
associations, societies, firms, partnerships, joint stock companies,
individuals, the United States, the state of New York and any of its
political subdivisions or agents;
15. "Petroleum" means oil or petroleum of any kind and in any form
including, but not limited to, oil, petroleum, fuel oil, oil sludge, oil
refuse, oil mixed with other wastes and crude oils, gasoline and
kerosene;
15-a. "Petroleum-bearing vessel" means any vessel transporting
petroleum in commercial quantities as cargo or any vessel constructed or
adapted for the carriage of petroleum in bulk;
15-b. "Sinking agents" means additives applied to petroleum discharges
to sink floating pollutants below the water surface.
15-c. "Surface collecting agents" means chemical agents that form a
surface film to control the layer thickness of petroleum.
15-d. "Tank vessel" means a vessel that is constructed or adapted to
carry, or that carries, petroleum in bulk as cargo or cargo residue, and
that:
(a) is a vessel of the United States;
(b) operates on the waters of the state of New York; or
(c) transfers petroleum in a place subject to the jurisdiction of the
of the state of New York.
16. "Transfer" means onloading or offloading between major facilities
and vessels or vessels and major facilities, and from vessel to vessel
or major facility to major facility;
17. "Vessel" means every description, of watercraft or other
contrivance that is practically capable of being used as a means of
commercial transportation of petroleum upon the water, whether or not
self-propelled; and
18. "Waters" means the ocean and its estuaries to the seaward limit of
the state's jurisdiction, and all lakes, springs, streams and bodies of
surface or groundwater, whether natural or artificial, within the
boundaries of this state. Provided, however, that for purposes of this
definition, waters of the state adjacent to Long Island Sound are to be
strictly construed to effectuate only the provisions of this article.
PART 2 Oil Spill Cleanup and Removal; Licenses
Discharge of petroleum; prohibition. 1. The discharge of
petroleum is prohibited.
2. On or after January first, nineteen hundred ninety-four, all new
vessels sold in New York that are equipped with fuel tank air vents
shall have such fuel tank air vents designed to prevent fuel overflow
during refueling. The provisions of this subdivision shall not apply to
those fuel systems in vessels which are required to meet the standards
provided for in the Federal Boat Safety Act of 1971.
3. This section shall not apply to discharges of petroleum pursuant to
and in compliance with the conditions of a federal or state permit.
Licenses. 1. No person shall operate or cause to be operated a
major facility as defined in this article without (a) a license issued
by the commissioner, (b) without paying a license fee if such fee is
required by the administrator, pursuant to the provisions of paragraph
(a) of subdivision four of this section, and (c) without paying the
surcharge established by paragraph (b) of subdivision four of this
section.
2. Licenses shall be issued for a period not to exceed five years,
subject to such terms and conditions as the department may determine are
necessary to carry out the purposes of this article.
3. As a condition precedent to the issuance or renewel of a license
the department shall require satisfactory evidence that the applicant
has implemented or is in the process of implementing state and federal
plans and regulations for control of discharges of petroleum, and the
containment and removal thereof when a discharge occurs.
4. (a) The license fee shall be nine and one-half cents per barrel
transferred, provided, however, that the fee on any barrel, including
any products derived therefrom, subject to multiple transfer, shall be
imposed only once at the point of first transfer. Provided further, the
license fee for major facilities that (i) transfer barrels for their own
use, and (ii) do not sell or transfer the product subject to such
license fee, shall be eight cents. In each fiscal year following any
year in which the balance of the account established by paragraph (a) of
subdivision two of section one hundred seventy-nine of this article
equals or exceeds forty million dollars, no license fee shall be imposed
unless (a) the current balance in such account is less than thirty-five
million dollars or (b) pending claims against such account exceed fifty
percent of the existing balance of such account. In the event of either
such occurrence and upon certification thereof by the state comptroller,
the administrator shall within ten days of the date of such
certification reimpose the license fee, which shall take effect on the
first day of the month following such relevy. The rate may be set at
less than nine and one-half cents per barrel transferred if the
administrator determines that the revenue produced by such lower rate
shall be sufficient to pay outstanding claims against such account
within one year of such imposition of the license fee. Should such
account exceed forty million dollars, as a result of interest, the
administrator and the commissioner of environmental conservation shall
report to the legislature and the governor concerning the options for
the use of such interest. The fee established by this paragraph shall
not be imposed upon any barrel which is transferred to a land based
facility but thereafter exported from this state for use outside the
state and is shipped to facilities outside the state regardless of
whether the delivery or sale of such petroleum occurs in this state.
(b) The surcharge on the license fee shall be four and one-quarter
cents per barrel for each barrel transferred on or after February first,
nineteen hundred ninety.
(c) The surcharge established by paragraph (b) of this subdivision
shall continue to be paid despite the fact that the license fee imposed
pursuant to paragraph (a) of this subdivision may, pursuant to said
paragraph, no longer be imposed.
(d) The surcharge established by paragraph (b) of this subdivision
shall be thirteen and three quarters cents per barrel for any barrel
that is transferred but thereafter exported from this state for use
outside the state as described by paragraph (a) of this subdivision.
Twelve and one-quarter cents of such surcharge shall be credited to the
account established by paragraph (a) of subdivision two of section one
hundred seventy-nine of this article.
5. Every licensee required to pay a major petroleum license fee or
surcharge pursuant to paragraph (a) or (b) of subdivision four of this
section shall on or before the twentieth day of the month following the
close of each license fee period certify to the commissioner on such
forms as may be prescribed by the commissioner the number of barrels of
petroleum transferred to the licensee's major facility during the
license fee period and at the same time shall pay the full amount of the
license fee and surcharge due except that no licensee shall be required
to make such payment until the cumulative amount due equals or exceeds
one hundred dollars. Any licensee whose cumulative license fee or
surcharge does not equal or exceed one hundred dollars annually shall
pay the total amount due on or before the twentieth day following the
expiration date of the license issued pursuant to this section.
Licensees who did not have to pay the license fee or surcharge shall
certify annually to the commissioner on a form as may be prescribed by
the commissioner on or before the twentieth day of April that the
barrels of petroleum transferred to the licensee's major facility were
not subject to the license fee or surcharge.
6. If a certificate required by this section is not filed, or if a
certificate when filed is incorrect or insufficient in the opinion of
the commissioner, the amount of license fee or surcharge due shall be
determined by the commissioner from such information as may be
available. Notice of such determination, and notice of licensee's right
to appeal such determination, shall be given to the licensee liable for
the payment of the license fee or surcharge. Such determination shall
finally and irrevocably fix the fee or surcharge unless the person
against whom it is assessed, within thirty days after receiving notice
of such determination, shall apply to the commissioner for a hearing, or
unless the commissioner on his own motion shall redetermine the same.
After such hearing the commissioner shall give notice of his
determination to the person to whom the license fee or surcharge is
assessed.
7. Any licensee failing to file a certificate, failing to pay a
license fee or surcharge, or filing or causing to be filed, a
certificate which is willfully false, or failing to keep any records
required by this article or rules and regulations adopted hereunder,
shall, in addition to any other penalties herein or otherwise provided,
be subject to a fine not to exceed two times the annual license fee or
surcharge, as determined by the commissioner.
8. Within three months of the effective date of this article every
owner or operator of a major facility shall obtain a license. The
department shall issue a license upon the showing that such registrant
can provide necessary equipment to prevent, contain and remove
discharges of petroleum.
9. On or after June twenty-ninth, nineteen hundred seventy-eight, no
person shall operate or cause to be operated any major facility without
a major facility license issued by the commissioner. No license shall be
valid for more than five years. Each applicant for a major facility
license shall submit information, in a form satisfactory to the
commissioner, describing the following:
(a) The number of barrels or another measurement of the storage
capacity of the facility;
(b) Average daily throughput of the facility;
(c) A primary and contingency cleanup and removal plan which includes,
but is not limited to, an inventory of:
(i) The storage and transfer capacity of the facility;
(ii) The containment and removal equipment, including, but not limited
to, vehicles, vessels, pumps, skimmers, booms, chemicals, and
communication devices, to which the facility has access through direct
ownership or by contract or membership in a discharge cleanup
organization recognized by the departments of environmental conservation
and transportation as well as the time lapse following a discharge which
precedes such access;
(iii) The trained personnel which are required and available to
operate such containment and removal equipment and the time lapse
following a discharge which precedes such availability;
(iv) All equipment and trained personnel used or employed in a
capacity at the facility to prevent discharges of petroleum;
(v) The terms of agreement and operation plan of any discharge cleanup
organization to which the owner or operator of the facility belongs;
(vi) The type and amount of petroleum transferred, refined, processed
or stored at the facility;
(d) The steps taken to insure prevention of a discharge;
10. No portion of fees or surcharges assessed and collected pursuant
to this section shall be used for any purpose if such use, under federal
law, would preclude the collection of such fee or surcharge.
11. Each owner or operator of a major facility or vessel subject to
the provisions of this article shall designate a person in the state as
his legal agent for service of process under this section and such
designation shall be filed with the secretary of state. In the absence
of such designation the secretary of state shall be the designated agent
for purposes of service of process under this section.
Use of containment booms. 1. The commissioner, after
consultation with appropriate federal, state and local governments and
agencies, may promulgate regulations requiring the use of containment
booms or prestaging of response equipment around or at major facilities
and vessels involved in the transfer of petroleum. The commissioner may
consult with interested groups and trade associations in developing such
regulations. In adopting such regulations, the commissioner shall
consider factors, including but not limited to applicable federal laws
and regulations, weather conditions, tides, health and safety of workers
and product being transferred.
2. Whenever petroleum is transferred after sunset and before sunrise,
lighting adequate to detect any petroleum discharge shall be in
operation.
3. The deployment of containment booms pursuant to this part shall be
the responsibility of the owner, lessee or operator of the vessels
involved in a vessel-to-vessel petroleum transfer. The deployment of
containment booms pursuant to this part shall be the responsibility of
the owner, lessee or operator of the major facility involved in a
petroleum transfer between a vessel and a major facility.
4. (a) Any local law or ordinance which is inconsistent with any
provision of this part or any rule or regulation promulgated hereunder
shall be preempted, except that any local law or ordinance of any
county, or of any city of a population of one million or more, which is
inconsistent with the provisions of this part or any rules or
regulations promulgated hereunder shall not be preempted if such local
law or ordinance provides environmental protection equal to or greater
than the provisions of this part of any rules or regulations promulgated
hereunder, and such county or city files with the department a written
declaration of its intent to administer and enforce such local law or
ordinance which is approved by the commissioner in written findings
which set forth the terms of such approval.
(b) Any owner, lessee or operator violating any provisions of this
section or any rule promulgated thereunder shall: (i) if the transfer
involves and/or the vessel contains less than one million gallons, be
liable for a penalty of not more than twenty-five thousand dollars for
each offense in a court of competent jurisdiction; or (ii) if the
transfer involves and/or the vessel contains one million gallons or
more, be liable for a penalty of not more than fifty thousand dollars
for each offense in a court of competent jurisdiction. Every violation
of this section shall be a separate and distinct offense, and, in case
of a continuing violation, every day's continuance thereof shall be
deemed to be a separate and distinct offense.
(c) All penalties and fines imposed under this section shall be
credited to the New York environmental protection and spill compensation
fund pursuant to paragraph (a) of subdivision two of section one hundred
seventy-nine of this chapter.
Use of agents. 1. The commissioner may promulgate regulations
governing the use of dispersants, burning agents, biological additives,
surface collecting agents or other chemical additives in the cleanup and
removal of a petroleum discharge.
2. The commissioner shall pursue an official memorandum of
understanding with the United States Coast Guard regarding the planned
uses of dispersants, burning agents, sinking agents, biological
additives, surface collecting agents or other chemical additives in the
event of a petroleum discharge. Such memorandum of understanding should
be reflective of any rules or regulations promulgated pursuant to this
section.
3. No person shall supervise, aid or participate in any use of
dispersants, burning agents, sinking agents, biological additives,
surface collecting agents or other chemical additives which is
inconsistent with any rule or regulation promulgated pursuant to this
section.
Notification by persons responsible for discharge. Any person
responsible for causing a discharge shall immediately notify the
department pursuant to rules and regulations established by the
department, but in no case later than two hours after the discharge.
Failure to so notify shall make persons liable to the penalty provisions
of section 192 of this article. Notwithstanding the provisions of any
other law, such notification to the department shall be deemed to
fulfill the notification requirements of any other state or local law.
Removal of prohibited discharges. 1. Any person discharging
petroleum in the manner prohibited by section one hundred seventy-three
of this article shall immediately undertake to contain such discharge.
Notwithstanding the above requirement, the department may undertake the
removal of such discharge and may retain agents and contractors who
shall operate under the direction of such department for such purposes.
The commissioner shall develop a system of immediate response type
contracts with appropriate agents and contractors. Such contracts shall
be subject to the approval of the state comptroller in accordance with
section one hundred twelve of the state finance law, however, such
approval shall not obligate to any particular contract any specific
amount of monies from the fund but shall obligate from the fund on an
individual basis as such contracts are utilized the actual amount
required to effectuate any contract or any portion thereof. Any
necessary approvals of availability of funds for a particular project in
accordance with any provision of the state finance law shall be
undertaken as soon as practical after clean up and removal procedures
are undertaken, or such procedures are ordered by the commissioner.
2. (a) Upon the occurrence of a discharge of petroleum, the department
shall respond promptly and proceed to cleanup and remove the discharge
in accordance with environmental priorities or may, at its discretion,
direct the discharger to promptly cleanup and remove the discharge. The
department shall be responsible for cleanup and removal or as the case
may be, for retaining agents and contractors who shall operate under the
direction of that department for such purposes. Implementation of
cleanup and removal procedures after each discharge shall be conducted
in accordance with environmental priorities and procedures established
by the department.
(b) Section eight of the court of claims act or any other provision of
law to the contrary notwithstanding, the state shall be immune from
liability and action with respect to any act or omission done in the
discharge of the department's responsibility pursuant to this article;
provided, however, that this subdivision shall not limit any liability
which may otherwise exist for unlawful, willful or malicious acts or
omissions on the part of the state, state agencies, or their officers,
employees or agents or for a discharge in violation of section one
hundred seventy-three of this article.
3. Any unexplained discharge of petroleum within state jurisdiction or
discharge of petroleum occurring in waters beyond state jurisdiction
that for any reason penetrates within state jurisdiction shall be
removed by or under the direction of the department. Except for those
expenses incurred by the party causing such discharge, any expenses
incurred in the removal of discharges shall be paid promptly from the
New York environmental protection and spill compensation fund pursuant
to sections one hundred and eighty-six and one hundred seventy-nine-a of
this article and any reimbursements due such fund shall be collected in
accordance with the provisions of section one hundred and eighty-seven
of this article.
4. Cleanup and removal of petroleum and actions to minimize damage
from discharges shall be, to the greatest extent possible, in accordance
with the National Contingency Plan for removal of oil and hazardous
substances established pursuant to section 311 (d) of the Federal Water
Pollution Control Act (33 U.S.C. 1251 et seq.), as amended by the
Federal Oil Pollution Act of 1990 (33 U.S.C. 2701 et seq.), or revised
under section 105 of the Comprehensive Environmental Response,
Compensation, and Liability Act (42 U.S.C. 9605).
5. The department in consultation with the attorney general shall
develop a standard contract form to be used when contracting services
for the cleanup and removal of a discharge.
6. Whenever the department acts to remove a discharge or contracts to
secure prospective removal services, it is authorized to draw upon the
money available in the fund. Such moneys shall be used to pay promptly
for all cleanup and removal costs incurred by the department.
7. (a) Nothing in this section is intended to preclude cleanup and
removal by any person threatened by such discharges, who, as soon as is
reasonably possible, coordinates and obtains approval for such actions
with ongoing state or federal operations and appropriate state and
federal authorities. Notwithstanding any other provision of law to the
contrary, the liability of any contractor for such person, where such
person obtains approval from appropriate state and federal authorities
for such cleanup and removal, and the liability of any person providing
services related to the cleanup or removal of a discharge, under
contract with the department, for any injury to a person or property
caused by or related to such services shall be limited to acts or
omissions of the person during the course of performing such services
which are shown to have been the result of negligence, gross negligence
or reckless, wanton or intentional misconduct. Notwithstanding any other
provisions of law, when (i) a verdict or decision in an action or claim
for injury to a person or property caused by or related to such services
is determined in favor of a claimant in an action involving a person
performing such services and any other person or persons jointly liable,
and (ii) the liability of the person performing such services is found
to be fifty percent or less of the total liability assigned to all
persons liable, and (iii) the liability of the person performing such
services is not based on a finding of reckless disregard for the safety
of others, or intentional misconduct, then the liability of the person
performing such services to the claimant for loss relating to injury to
property and for non-economic loss relating to injury to a person shall
not exceed the equitable share of the person performing such services
determined in accordance with the relative culpability of each person
causing or contributing to the total liability for such losses;
provided, however, that the culpable conduct of any person not a party
to the action shall not be considered in determining any equitable share
herein if the claimant proves that with due diligence the claimant was
unable to obtain jurisdiction over such person in said action. As used
in this section, the term "non-economic loss" includes, but is not
limited to, pain and suffering, mental anguish, loss of consortium or
other damages for non-economic loss. However, nothing in this
subdivision shall be deemed to alter, modify or abrogate the liability
of any person performing such services for breach of any express
warranty, limited or otherwise, or an express or implied warranty under
the uniform commercial code, or to an employee of such person pursuant
to the workers' compensation law, or to relieve from any liability any
person who is responsible for a discharge in violation of section one
hundred seventy-four of this article.
(b) No action taken by any person to contain or remove a discharge
shall be construed as an admission of liability for said discharge. No
person who gratuitously renders assistance in containing or removing a
discharge shall be liable for any civil damages to third parties
resulting solely from acts or omissions of such person in rendering such
assistance except for acts or omissions of gross negligence or willful
misconduct. In the course of cleanup and removal, no person shall
discharge any detergent into the waters of this state without prior
authorization of the commissioner of environmental conservation.
(c) A person may, without admission of responsibility for the
discharge of petroleum and with the consent of the commissioner,
commence clean up and removal of the discharge and upon the
recommendation of the commissioner of health and with the consent of the
fund undertake the relocation of persons affected by the discharge of
petroleum. Upon determination by the fund that the person is not
responsible for the discharge, the person shall be reimbursed by the
fund for the actual and necessary expenses incurred.
8. Notwithstanding any other provision of law to the contrary,
including but not limited to section 15-108 of the general obligations
law, every person providing cleanup, removal of discharge of petroleum
or relocation of persons pursuant to this section shall be entitled to
contribution from any other responsible party.
Emergency oil spill control network. 1. The commissioner shall
establish an emergency oil spill control network which shall be
comprised of available equipment from appropriate town, county and state
highway departments. Such network shall be employed to provide an
immediate response to a discharge on any of the waters of the state.
Furthermore, such network shall be employed in conjunction with the
cleanup operations of the owner or operator, the department and any
federal agency.
2. The commissioner shall make an inventory of all equipment in town,
county, and state highway departments that would be capable of
participating in discharge cleanup operations.
3. The commissioner shall have the power to deploy such equipment to
participate in a discharge cleanup operation at his discretion and to
reimburse such town, county, and state highway departments for use of
such equipment from the fund.
4. The commissioner may request and shall receive from any other state
agency such assistance and data as will enable him to carry out his
responsibilities pursuant to this section.
5. (a) The commissioner shall issue a catalogue designed to expedite
responses to discharges of petroleum.
(b) The catalogue shall contain the following information, broken down
by geographical area:
(i) a listing of state stand-by contractors, their equipment and spill
response capabilities;
(ii) a listing of state-owned equipment which could be used in the
event of a major discharge of petroleum;
(iii) a listing of companies and organizations that have spill
response equipment available for sale, lease or loan; and
(iv) a listing of organizations which are involved in the cleanup and
rehabilitation of birds and wildlife.
(c) The catalogue shall be updated as deemed appropriate by the
commissioner.
(d) The commissioner shall notify the chief executive officer of all
counties which border on any navigable waters of the state or on the
marine and coastal district, as defined in section 13-0303 of the
environmental conservation law, of the availability of the catalogue.
This catalogue shall be distributed upon request at a maximum fee of
twenty-five cents per page. Any such fee shall be deposited into the New
York environmental protection and spill compensation fund established
pursuant to section one hundred seventy-nine of this article.
6. The commissioner may institute a program to educate local officials
on procedures to follow in reporting and responding to spill
emergencies.
Emergency oil spill relocation network. 1. The commissioner
shall establish an emergency oil spill relocation network which shall be
headed by the commissioner of health and comprised of the appropriate
services from county and state health departments.
2. Such network shall be employed to provide an immediate response to
a discharge in any area of the state where the public health may be at
risk. Further, such network shall be employed in conjunction with the
cleanup operations of the owner or operator, the department or any
federal agency.
3. The commissioner of health shall be first notified whenever an
application is made for emergency oil spill relocation.
4. The commissioner of health shall have the power to deploy such
resources at his discretion to the state and local health departments to
make an assessment of the possible health risks to persons residing in
the area of the spill site.
5. The commissioner of health shall determine the actual and necessary
costs of the relocation of individuals who, in his opinion, are exposed
to health risks as a result of the discharge and certify the amount of
such costs to the administrator. The certification by the commissioner
of health shall be for a period of relocation not exceeding thirty days,
provided that the commissioner upon a further assessment of the possible
health risks in the area of the spill site may extend such relocation
for successive thirty day periods. The certification by the commissioner
of health shall not be admissible in any civil action in a court of law
in regard to the issue of damages to the individuals certified for
relocation pursuant to this section.
6. Notwithstanding any provision of law to the contrary the
certification of individuals for relocation and its associated costs
shall be an issue restricted to consideration as cleanup cost and shall
not be a determination of liability, nor shall it be admissible in any
civil action in a court of law in regard to the issue of damages to the
individuals certified for relocation pursuant to this section.
7. The commissioner of health may request and shall receive from the
department and any other state agency such assistance and data as will
enable him to carry out his responsibilities pursuant to this section.
Habitat protection plan. The commissioner may require every
major facility which engages in the transfer of petroleum to file with
the department a habitat protection plan as a condition of issuance of a
license pursuant to section one hundred seventy-four of this article.
Such plan shall provide protection from the potential adverse impact of
any discharge on the habitat of threatened or endangered species and the
mitigation of potential damage to wetlands in reasonable proximity to
the facility. Such plan shall contain provisions for the rehabilitation
of animals damaged by the discharge of petroleum.
Right to enter and inspect. The department is hereby authorized
to enter and inspect any property or premises for the purpose of
inspecting facilities and investigating either actual or suspected
sources of discharges or violation of this article or any rule or
regulation promulgated pursuant to this article. The department is
further authorized to enter on property or premises in order to assist
in the cleanup or removal of the discharge. Any information relating to
secret processes or methods of manufacture shall be kept confidential.
Responder immunity. 1. Definitions. For the purposes of this
section only, the following terms shall have the following meanings:
(a) "response efforts" means rendering care, assistance, or advice in
accordance with the national contingency plan, the state oil spill
contingency plan, or at the direction of the federal on-scene
coordinator or the commissioner or his designee, in response to a
discharge or threatened discharge of petroleum into or upon the
navigable waters.
(b) "responsible party" and "navigable waters" shall have the meanings
set forth in section 1001 of the Federal Oil Pollution Act of 1990 (33
U.S.C. 2701 et seq.).
2. Notwithstanding any other provision of law, (a) a person is not
liable for cleanup and removal costs or damages which result from
actions taken or omitted to be taken in good faith in the course of
rendering care, assistance or advice consistent with the national
contingency plan or as otherwise directed by the federal on-scene
coordinator or by the commissioner or his designee, in response to a
discharge or threatened discharge of petroleum into or upon the
navigable waters.
(b) A person holding a master's or a towing vessel operator's license,
the owner, and operator of a vessel operated by such person are not
liable for cleanup and removal costs or damages which result from
actions taken in good faith in the course of rendering assistance, in an
emergency situation, at the request of the owner or operator of a vessel
attempting to prevent the substantial threat of a discharge of petroleum
into or upon the navigable waters; provided, however, that reasonable
efforts are made to notify the federal on-scene coordinator or the
commissioner or his designee prior to such assistance being rendered or,
if that is not practicable, as soon as possible thereafter.
3. However, the provisions of subdivision two of this section shall
not apply to: (i) a responsible party, (ii) liability for personal
injury or wrongful death, (iii) cleanup and removal costs and damages
resulting from such person's gross negligence or willful misconduct,
(iv) negligence in the operation of a motor vehicle as defined in
section one hundred twenty-five of the vehicle and traffic law, and (v)
any physical actions taken that are not in or near the area of cleanup
and removal of a discharge or threatened discharge.
4. The provisions of subdivision two of this section shall not apply
to any response efforts undertaken by a person later than one hundred
twenty days after a discharge has been stopped. Thereafter, such person
shall not be strictly liable without regard to fault, but the liability
of such person for personal injury or property damage shall be limited
to acts or omissions of the person during the course of such response
efforts which are shown to be the result of negligence, gross
negligence, or reckless, wanton or intentional misconduct.
Notwithstanding any other provision of law, when (i) a verdict or
decision on a claim for injury to persons or property caused by response
efforts, occurring after such one hundred twenty day period has ended,
is determined in favor of the claimant in an action involving such
person's response efforts and any other person or persons jointly
liable, and (ii) the liability of the person related to such response
efforts is found to be fifty percent or less of the total liability
assigned to all persons liable, and (iii) the liability of the person
related to such response efforts is not based on a finding of reckless
disregard for the safety of others or of intentional misconduct, then
the liability of such person to the claimant for injury to property and
for non-economic loss relating to injury to a person shall not exceed
the equitable share of such person as determined in accordance with the
relative culpability of each person causing or contributing to the total
liability. Provided, however, the culpable conduct of any person not a
party to such action shall not be considered in determining any
equitable share if the claimant was unable, with due diligence, to
obtain jurisdiction over such person in said action. As used in this
section, "non-economic loss" includes but is not limited to pain and
suffering, mental anguish, loss of consortium or other damages for
non-economic loss. However, nothing herein shall alter, modify, or
abrogate the liability of any person for breach of warranty or to an
employee of such person pursuant to the workers' compensation law, or to
relieve from liability any person who is responsible for a discharge in
violation of section one hundred seventy-four of this article.
5. In addition to any other liability, a responsible party shall be
liable for any cleanup and removal costs and damages that another person
is relieved of under subdivision two or four or both of this section.
6. Nothing in this section affects (i) the obligation of a discharger
to respond immediately and to cleanup and remove a discharge; or (ii)
the liability of a discharger under other provisions of this article or
the environmental conservation law.
PART 3 New York Environmental Protection and Spill Compensation Fund; Liability; Third Party Compensation
New York environmental protection and spill compensation fund.
1. The New York environmental protection and spill compensation fund is
hereby established as a nonlapsing, revolving fund in the department of
audit and control to carry out the purposes of this article.
2. Two separate accounts are hereby established within the fund
established by subdivision one of this section:
(a) An account which shall be credited with all license fees and
penalties collected pursuant to paragraph (b) of subdivision one and
paragraph (a) of subdivision four of section one hundred seventy-four of
this article except as provided in section one hundred seventy-nine-a of
this article, the portion of the surcharge collected pursuant to
paragraph (d) of subdivision four of section one hundred seventy-four of
this article, penalties collected pursuant to paragraph (b) of
subdivision four of section one hundred seventy-four-a of this article,
money collected pursuant to section one hundred eighty-seven of this
article, all penalties collected pursuant to section one hundred
ninety-two of this article, and registration fees collected pursuant to
subdivision two of section 17-1009 of the environmental conservation
law.
(b) An account which shall be credited with all surcharges collected
pursuant to paragraph (c) of subdivision one and paragraph (b) of
subdivision four of section one hundred seventy-four of this article. In
addition, such account shall be credited with funds from the account
established by paragraph (a) of this subdivision in an amount equal to
two and three-quarters cents multiplied by the number of barrels of
petroleum subject to the provisions of paragraph (d) of subdivision four
of section one hundred seventy-four of this article. The amount so
credited shall not exceed the amount equal to two and three-quarters
cents multiplied by the number of barrels which would have been subject
to the provisions of such paragraph (d) during the state fiscal year
ending March thirty-first, nineteen hundred ninety-nine.
Interest received on moneys in each account in the fund shall be
credited to that account, respectively.
New York environmental protection and spill remediation
account. 1. There is hereby created an account within the miscellaneous
capital projects fund, the New York environmental protection and spill
remediation account. The New York environmental protection and spill
remediation account shall consist of license fees received by the state
pursuant to section one hundred seventy-four of this article, in an
amount equal to expenditures made from this account.
2. These moneys, after appropriation by the legislature, and within
the amounts set forth and for the several purposes specified, shall be
available to reimburse the department of environmental conservation for
expenditures associated with the purposes of costs incurred under this
article, including cleanup and removal of petroleum spills, and other
capital, investigation, maintenance and remediation costs.
3. All payments made from the New York environmental protection and
spill remediation account shall be made by the administrator upon
certification by the commissioner.
4. Spending pursuant to this section shall be included in the annual
report required by section one hundred ninety-six of this article.
Administrator of the fund. The state comptroller shall appoint
and supervise an administrator of the fund. The administrator shall be
the chief executive of the fund and shall have the following powers and
duties:
1. To represent the state in meetings with the alleged discharger and
claimants concerning liability for the discharge and amount of the
claims;
2. To determine if hearings are needed to settle particular claims
filed by injured persons;
3. To convene hearings;
4. To certify the amount of claims and names of claimants to the state
comptroller;
5. To disburse moneys from the fund for cleanup and removal costs
pursuant to a certification of claims by the commissioner.
Liability. 1. Any person who has discharged petroleum shall be
strictly liable, without regard to fault, for all cleanup and removal
costs and all direct and indirect damages, no matter by whom sustained,
as defined in this section. In addition to cleanup and removal costs and
damages, any such person who is notified of such release and who did not
undertake relocation of persons residing in the area of the discharge in
accordance with paragraph (c) of subdivision seven of section one
hundred seventy-six of this article, shall be liable to the fund for an
amount equal to two times the actual and necessary expense incurred by
the fund for such relocation pursuant to section one hundred
seventy-seven-a of this article.
2. The fund shall be strictly liable, without regard to fault, for all
cleanup and removal costs and all direct and indirect damages, no matter
by whom sustained, including, but not limited to:
(a) The cost of restoring, repairing, or replacing any real or
personal property damaged or destroyed by a discharge, any income lost
from the time such property is damaged to the time such property is
restored, repaired or replaced, any reduction in value of such property
caused by such discharge by comparison with its value prior thereto;
(b) The cost of restoration and replacement, where possible, of any
natural resource damaged or destroyed by a discharge;
(c) Loss of income or impairment of earning capacity due to damage to
real or personal property, including natural resources destroyed or
damaged by a discharge; provided that such loss or impairment exceeds
ten percent of the amount which claimant derives, based upon income or
business records, exclusive of other sources of income, from activities
related to the particular real or personal property or natural resources
damaged or destroyed by such discharge during the week, month or year
for which the claim is filed;
(d) Loss of tax revenue by the state or local governments for a period
of one year due to damage to real or personal property proximately
resulting from a discharge;
(e) Interest on loans obtained or other obligations incurred by a
claimant for the purpose of ameliorating the adverse effects of a
discharge pending the payment of a claim in full as provided by this
article.
3. (a) The owner or operator of a major facility or vessel which has
discharged petroleum shall be strictly liable, without regard to fault,
subject to the defenses enumerated in subdivision four of this section,
for all cleanup and removal costs and all direct and indirect damages
paid by the fund. However, the cleanup and removal costs and direct and
indirect damages which may be recovered by the fund with respect to each
incident shall not exceed:
(i) for a tank vessel, the greater of:
(1) one thousand two hundred dollars per gross ton; or
(2) (A) in the case of a vessel greater than three thousand gross
tons, ten million dollars; or
(B) in the case of a vessel or three thousand gross tons or less, two
million dollars;
(ii) for any other vessel subject to the liability limits set forth in
the Federal Oil Pollution Act of 1990 (33 U.S.C. 2701 et seq.), six
hundred dollars per gross ton or five hundred thousand dollars,
whichever is greater;
(iii) for any other vessel not subject to the liability limits set
forth in the Federal Oil Pollution Act of 1990 (33 U.S.C. 2701 et seq.),
three hundred dollars per gross ton for each vessel;
(iv) for a major facility that is defined as an "onshore facility" and
covered by the liability limits established under the Federal Oil
Pollution Act of 1990 (33 U.S.C. 2701 et seq.), three hundred fifty
million dollars. This liability limit shall not be considered to
increase the liability above the federal limit of three hundred fifty
million dollars per incident.
(v) for a major facility not covered in subparagraph (iv) of this
paragraph, fifty million dollars.
(b) The liability limits established in subparagraphs (i) and (ii) of
paragraph (a) of this subdivision shall not be considered to increase
liability above the federal limits for tank vessels or vessels as
defined in the Federal Oil Pollution Act of 1990 (33 U.S.C. 2701 et
seq.).
(c) (i) The department shall establish, by regulation, a limit of
liability under this subdivision of less than three hundred fifty
million dollars but not less than eight million dollars, for major
facilities defined as "onshore facilities" under the Federal Oil
Pollution Act of 1990 (33 U.S.C. 2701 et seq.), taking into account
facility size, storage capacity, throughput, proximity to
environmentally sensitive areas, type of petroleum handled, and other
factors relevant to risks posed by the class or category of facility.
(ii) The department shall establish, by regulation, a limit of
liability under this subdivision of fifty million dollars or less for
major facilities other than vessels that are not defined as "onshore
facilities" under the Federal Oil Pollution Act of 1990 (33 U.S.C. 2701
et seq.), taking into account facility size, storage capacity,
throughput, proximity to environmentally sensitive areas, type of
petroleum handled, and other factors relevant to risks posed by the
class or category of facility.
(d) The provisions of paragraph (a) of this subdivision shall not
apply and the owner or operator shall be liable for the full amount of
cleanup and removal costs and damages if it can be shown that the
discharge was the result of (i) gross negligence or willful misconduct,
within the knowledge and privity of the owner, operator or person in
charge, or (ii) a gross or willful violation of applicable safety,
construction or operating standards or regulations. In addition, the
provisions of paragraph (a) of this subdivision shall not apply if the
owner or operator fails or refuses:
(1) to report the discharge as required by section one hundred
seventy-five of this article and the owner or operator knows or had
reason to know of the discharge; or
(2) to provide all reasonable cooperation and assistance requested by
the federal on-scene coordinator or the commissioner or his designee in
connection with cleanup and removal activities.
(e) (i) The owner or operator of a vessel shall establish and maintain
with the department evidence of financial responsibility sufficient to
meet the amount of liability established pursuant to paragraph (a) of
this subdivision. The owner or operator of any vessel which demonstrates
financial responsibility pursuant to the requirements of the Federal Oil
Pollution Act of 1990 (33 U.S.C. 2701 et seq.), shall be deemed to have
demonstrated financial responsibility in accordance with this paragraph.
(ii) The commissioner in consultation with the superintendent of
financial services may promulgate regulations requiring the owner or
operator of a major facility other than a vessel to establish and
maintain evidence of financial responsibility in an amount not to exceed
twenty-five dollars, per incident, for each barrel of total petroleum
storage capacity at the facility, subject to a maximum of one million
dollars per incident per facility in an aggregate not to exceed two
million dollars per facility per year; provided, however, that if the
owner or operator establishes to the satisfaction of the commissioner
that a lesser amount will be sufficient to protect the environment and
public health, safety and welfare, the commissioner shall accept
evidence of financial responsibility in such lesser amount. In
determining the sufficiency of the amount of financial responsibility
required under this section, the commissioner and the superintendent of
financial services shall take into consideration facility size, storage
capacity, throughput, proximity to environmentally sensitive areas, type
of petroleum handled, and other factors relevant to the risks posed by
the class or category of facility, as well as the availability and
affordability of pollution liability insurance. Any regulations
promulgated pursuant to this subparagraph shall not take effect until
forty-eight months after the effective date of this section.
(iii) Financial responsibility under this paragraph may be established
by any one or a combination of the following methods acceptable to the
commissioner in consultation with the superintendent of financial
services: evidence of insurance, surety bonds, guarantee, letter of
credit, qualification as a self-insurer, or other evidence of financial
responsibility, including certifications which qualify under the Federal
Oil Pollution Act of 1990 (33 U.S.C. 2701 et seq.).
(iv) The liability of a third-party insurer providing proof of
financial responsibility on behalf of a person required to establish and
maintain evidence of financial responsibility under this section is
limited to the type of risk assumed and the amount of coverage specified
in the proof of financial responsibility furnished to and approved by
the department. For the purposes of this section, the term "third-party
insurer" means a third-party insurer, surety, guarantor, person
furnishing a letter of credit, or other group or person providing proof
of financial responsibility on behalf of another person; it does not
include the person required to establish and maintain evidence of such
financial responsibility.
4. (a) The only defenses that may be raised by a person responsible
for a discharge of petroleum are: an act or omission caused solely by
(i) war, sabotage, or governmental negligence or (ii) an act or omission
of a third party other than an employee or agent of the person
responsible, or a third party whose act or omission occurs in connection
with a contractual relationship with the person responsible, if the
person responsible establishes by a preponderance of the evidence that
the person responsible (a) exercised due care with respect to the
petroleum concerned, taking into consideration the characteristics of
petroleum and in light of all relevant facts and circumstances; and (b)
took precautions against the acts or omissions of any such third party
and the consequences of those acts or omissions. These defenses shall
not apply to a person responsible who refuses or fails to (a) report the
discharge, or (b) provide all reasonable cooperation and assistance in
cleanup and removal activities undertaken on behalf of the fund by the
department. In any case where a person responsible for a discharge
establishes by a preponderance of the evidence that a discharge and the
resulting cleanup and removal costs were caused solely by an act or
omission of one or more third parties as described above, the third
party or parties shall be treated as the person or persons responsible
for the purposes of determining liability under this article.
(b) Nothing set forth in this subdivision shall be construed to hold a
lender liable to the state as a person responsible for the discharge of
petroleum at a site in the event: (i) such lender, without participating
in the management of such site, holds indicia of ownership primarily to
protect the lender's security interest in the site, or (ii) such lender
did not participate in the management of such site prior to a
foreclosure, and such lender:
(1) forecloses on such site; and
(2) after foreclosure, sells, re-leases (in the case of a lease
finance transaction), or liquidates such site, maintains business
activities, winds up operations, or takes any other measure to preserve,
protect or prepare such site for sale or disposition; provided however,
that such lender shall take actions to sell, re-lease (in the case of a
lease finance transaction), or otherwise divest itself of such site at
the earliest practicable, commercially reasonable time, on commercially
reasonable terms, taking into account market conditions and legal and
regulatory requirements.
(c) This exemption shall not apply to any lender that has (i) caused
or contributed to the discharge of petroleum from or at the site, (ii)
purchased, sold, refined, transported, or discharged petroleum from or
at such site, or (iii) caused the purchase, sale, refinement,
transportation, or discharge of petroleum from or at such site.
The terms "participating in management," "foreclosure," "lender" and
"security interest" shall have the same meaning as those terms are
defined in paragraph (c) of subdivision one of section 27-1323 of the
environmental conservation law.
5. Any claim by any injured person for the costs of cleanup and
removal and direct and indirect damages based on the strict liability
imposed by this section may be brought directly against the person who
has discharged the petroleum, provided, however, that damages recover-
able by any injured person in such a direct claim based on the strict
liability imposed by this section shall be limited to the damages
authorized by this section.
6. Notwithstanding any other provision of this section, a volunteer
firefighter, volunteer fire company, volunteer fire district, volunteer
fire protection district, or volunteer fire department shall not be
strictly liable for discharged petroleum when such discharge results
from such volunteer firefighter, volunteer fire company, volunteer fire
district, volunteer fire protection district, or volunteer fire
department performing his, her, or their firefighting duties and there
is not a showing of willful or gross negligence. This subdivision shall
not be construed to provide an exemption from liability for a discharge
of petroleum on or from real or personal property owned, leased, or
operated by any such volunteer fire company, volunteer fire district,
volunteer fire protection district, or volunteer fire department.
Environmental lien. 1. The fund shall have a lien for the
costs incurred by the fund for the cleanup and removal of a discharge
and for the payment of claims for direct and indirect damages as a
result of a discharge upon such real property located within the state:
(a) owned by a person liable to the fund for such costs under section
one hundred eighty-one of this part at the time a notice of
environmental lien is filed; and
(b) upon which the discharge occurred.
2. An environmental lien shall attach when:
(a) cleanup and removal costs and damage costs are incurred by the
fund;
(b) the person referred to in subdivision one of this section fails to
pay such costs within ninety days after a written demand therefor by the
administrator is mailed by certified or registered mail, return receipt
requested; and
(c) a notice of environmental lien is filed as provided in section one
hundred eighty-one-c of this part; provided, however, that a copy of the
notice of environmental lien is served upon the owner of the real
property subject to the environmental lien within thirty days of such
filing in accordance with the provisions of section eleven of the lien
law.
3. An environmental lien shall continue against the real property
until:
(a) the claim or judgment against the person referred to in
subdivision one of this section for cleanup and removal costs and damage
costs is satisfied or becomes unenforceable;
(b) the lien is released by the administrator pursuant to this
subdivision;
(c) the lien is discharged by payment of moneys into court; or
(d) the lien is otherwise vacated by court order.
Upon the occurrence of any of the foregoing, except where the lien is
vacated by court order, the administrator shall execute the release of
an environmental lien and file the release as provided in section one
hundred eighty-one-c of this part. The administrator may release an
environmental lien where:
(i) a legally enforceable agreement satisfactory to the administrator
has been executed relating to cleanup and removal costs and damage costs
or reimbursing the fund for cleanup and removal costs and damage costs;
or
(ii) the attachment or enforcement of the environmental lien is
determined by the administrator not to be in the public interest.
4. An environmental lien is subject to the rights of any other person,
including an owner, purchaser, holder of a mortgage or security
interest, or judgment lien creditor, whose interest is perfected before
a lien notice has been filed as provided in section one hundred
eighty-one-c of this part.
Environmental lien notice; contents. A notice of
environmental lien must state:
1. That the lienor is the New York environmental protection and spill
compensation fund;
2. The name of the record owner of the real property on which the
environmental lien has attached;
3. The real property subject to the lien, with a description thereof
sufficient for identification;
4. That the real property described in the notice is the property upon
which a discharge occurred and that cleanup and removal costs and damage
costs have been incurred by the lienor as a result of such discharge;
5. That the owner is potentially liable for cleanup and removal costs
and damage costs pursuant to section one hundred eighty-one of this
part; and
6. That an environmental lien has attached to the described real
property.
Filing of notice of environmental lien; filing of release. 1.
A notice of environmental lien shall be filed within six years from the
time a disbursement is made by the fund for cleanup and removal costs
and damage costs incurred by the fund in the clerk's office of the
county where the property is situated. If such property is situated in
two or more counties, the notice of environmental lien shall be filed in
the office of the clerk of each of such counties. The notice of lien
shall be indexed by the county clerk in accordance with the provisions
of section ten of the lien law.
2. A release of an environmental lien shall be filed in the clerk's
office of each county where the notice of environmental lien was filed
and shall be indexed in the manner prescribed for indexing environmental
liens.
Enforcement of environmental lien. An environmental lien may
be enforced against the property specified in the notice of
environmental lien, and an environmental lien may be vacated or
discharged, as prescribed in article three of the lien law; provided,
however, that nothing in this article or in article three of the lien
law shall affect the right of the fund to bring an action to recover
cleanup and removal costs and damage costs under section one hundred
eighty-one, one hundred eighty-seven, one hundred eighty-eight or one
hundred ninety of this part.
Amounts received to satisfy lien. Amounts received by the
administrator to satisfy all or part of an environmental lien shall be
deposited in the state treasury and credited to the environmental
protection and spill compensation fund.
Claims against the fund. Claims shall be filed with the
administrator not later than three years after the date of discovery of
damage nor later than ten years after the date of the incident which
caused the damage. The administrator shall prescribe appropriate forms
and procedures for such claims, which shall include a provision
requiring the claimant to make a sworn verification of the claim to the
best of his knowledge. Any person who knowingly gives or causes to be
given any false information as a part of any such claim shall, in
addition to any other penalties herein or elsewhere prescribed, be
guilty of a misdemeanor punishable by a fine of up to one thousand
dollars or up to one year imprisonment. Upon receipt of any claim, the
administrator shall as soon as practicable inform all affected parties
of the claim.
Settlements. The administrator shall attempt to promote and
arrange a settlement between the claimant and the person responsible for
the discharge. If the source of the discharge can be determined and
liability is conceded, the claimant and the alleged discharger may agree
to a settlement which shall be final and binding upon the parties and
which will waive all recourse against the fund.
Settlements when source of discharge is unknown. If the source
of the discharge is unknown or cannot be determined, the claimant and
the administrator shall attempt to arrange a settlement of any claim
against the fund. The administrator is authorized to enter and certify
payment of such settlement subject to such proof and procedures
contained in regulations promulgated by the administrator.
Hearings for persons on claims filed with the administrator. 1.
The administrator shall grant a hearing when persons alleged to be
responsible for the discharge contest the validity or amount of damage
claims or claims for cleanup and removal costs presented by injured
persons to the fund for payment or when injured persons who have filed a
claim against the fund contest the validity or amount of the settlement
proposed by the administrator.
2. One hearing may be granted to hear and determine all claims arising
from or related to a common discharge.
3. The burden of proof with respect to the validity or amount of
damage claims or claims for cleanup and removal costs shall be upon the
persons contesting such claims or the claimants contesting the
settlement proposed by the administrator.
4. At least twenty days notice of such hearing shall be given by the
administrator to the claimants and, if known, the alleged dischargers.
5. Upon the return day of such notice the person so notified shall
file with the administrator a statement setting forth the position of
the person so notified. Pertinent and relevant testimony of witnesses
shall be received in support of or opposition to said statement. The
claimants or alleged dischargers may appear in person or by attorney,
present witnesses, submit evidence and be given full opportunity to be
heard.
6. The administrator shall have the power to order testimony under
oath and may subpoena attendance and testimony of witnesses and the
production of such documentary materials pertinent to the issues
presented at the hearing. Each person appearing at the hearing may be
represented by counsel.
7. Within sixty calendar days from the close of such hearing and after
due consideration of the written and oral statements and testimony and
arguments filed pursuant to this section, or on default in appearance on
said return day, the administrator shall make a final determination on
the validity or amount of the damage claims or claims for cleanup and
removal costs filed by the injured persons. The administrator shall
notify the claimant and, if known, the alleged discharger thereof in
writing by registered mail.
8. Determinations made by the administrator after such hearing shall
be final and conclusive. Any action for judicial review shall be filed
pursuant to the provisions of article seventy-eight of the civil
practice law and rules.
9. Upon a determination by the administrator that provides for an
award to the claimants, the administrator shall certify the amount of
the award and the name of the claimant to the state comptroller, who
shall pay the award from the fund. In any case in which a person
responsible for the discharge seeks judicial review, reasonable
attorney's fees and costs shall be awarded to the claimant if the
determination of the administrator is affirmed.
Disbursement of moneys from the fund. 1. (a) Moneys in the
account established by paragraph (a) of subdivision two of section one
hundred seventy-nine of this part shall be disbursed by the
administrator, upon certification by the commissioner, for the purpose
of costs incurred under section one hundred seventy-six of this article.
(i) Beginning in state fiscal year two thousand fifteen--two thousand
sixteen, up to two million one hundred thousand dollars per year shall
be appropriated to the department for use only for the oil spill
prevention and training purposes authorized in subdivision three of this
section.
(b) Moneys in the account established by paragraph (b) of subdivision
two of section one hundred seventy-nine of this part shall, within
forty-five days of the close of each license fee period, be deposited by
the administrator, in the hazardous waste remedial fund created pursuant
to section ninety-seven-b of the state finance law for expenditure
pursuant to such section; provided, however, that the state comptroller
shall cause the administrator to reimburse the commissioner for the
reasonable costs of collecting the surcharge during those times when the
license fee is not imposed.
2. Moneys in the account established by paragraph (a) of subdivision
two of section one hundred seventy-nine of this part shall be disbursed
by the administrator, upon certification by him, for the following
purposes:
(a) Damages as defined in section one hundred eighty-one of this
article;
(b) Such sums as may be necessary for research on the prevention and
the effects of spills of petroleum on the environment and on the
development of improved cleanup and removal operations as may be
appropriated by the legislature; provided, however, that such sums shall
not exceed the amount of interest which is credited to the account
established by paragraph (a) of subdivision two of section one hundred
seventy-nine of this part;
(c) Such sums as may be necessary for the general administration of
the fund, equipment and personnel costs of the department of
environmental conservation and any other state agency related to the
enforcement of this article as may be appropriated by the legislature;
(d) Such sums as may be appropriated by the legislature for research
and demonstration programs concerning the causes and abatement of ocean
pollution; provided, however, that such sums shall not exceed the amount
of interest which is credited to the account established by paragraph
(a) of subdivision two of section one hundred seventy-nine of this part.
(e) Such sums as may be necessary for the general administration,
equipment and personnel costs of the department of environmental
conservation related to the administration and enforcement of the
petroleum bulk storage program established pursuant to title ten of
article seventeen of the environmental conservation law.
3. Moneys appropriated to the department pursuant to subparagraph (i)
of paragraph (a) of subdivision one of this section, up to two million
one hundred thousand dollars, shall be disbursed only for the following
purposes:
(a) Such sums as may be necessary for the acquisition and maintenance
of petroleum spill prevention, response or personal safety equipment and
supplies and training for state and local government entities, including
emergency services agencies and personnel.
(b) Such sums as may be necessary for petroleum spill response drills
and exercises.
(c) Such sums as may be necessary for identification, mapping, and
analysis of populations, environmentally sensitive areas, and resources
at risk from spills of petroleum and related impacts; and the
development, implementation, and updating of contingency plans,
including geographic response plans, to protect those populations,
sensitive environments, and resources in the event of a spill of
petroleum or related impacts.
(d) Spending pursuant to this subdivision shall be included in the
annual report required by section one hundred ninety-six of this
article.
4. Moneys shall be disbursed from the fund only for the purposes set
forth in subdivisions one, two and three of this section.
5. The state comptroller may invest and reinvest any moneys in said
fund in obligations in which the comptroller is authorized to invest
pursuant to the provisions of section ninety-eight-a of the state
finance law. Any income or interest derived from such investment shall
be included in the fund.
Reimbursements of moneys to fund. The administrator shall
recover to the fund moneys disbursed for the following purposes:
1. Costs incurred by the fund in the cleanup and removal of a
discharge when the person responsible for causing a discharge has failed
to promptly clean up and remove the discharge to the satisfaction of the
department;
2. Costs incurred by the fund in the payment of claims for direct and
indirect damages, as defined in section one hundred eighty-one of this
article; and
3. All penalties assessed pursuant to this article.
Subrogation of rights. Payment of any cleanup costs or damages
by the fund arising from a single incident shall be conditioned upon the
administrator acquiring by subrogation all rights of the claimant to
recovery of such costs or damages from the discharger or other
responsible party. The administrator shall then seek satisfaction from
the discharger or other responsible party in the supreme court if the
discharger or other responsible party does not reimburse the fund. In
any such suit, except as provided by section one hundred eighty-one of
this article, the administrator need prove only that an unlawful
discharge occurred which was the responsibility of the discharger or
other responsible party. The administrator is hereby authorized and
empowered to compromise and settle the amount sought for cost and
damages from the discharger or other responsible party and any penalty
arising under this article.
Awards exceeding current balance. In the event that the total
awards for a specific occurrence exceed the current balance of the fund,
the immediate award shall be paid on a prorated basis, and all claimants
paid on a prorated basis shall be paid as determined by the
administrator, a pro rata share of all moneys received by the fund until
the total amount of the proven damages is paid to the claimant or
claimants. The administrator may also provide through regulation to fix
the priority for the payment of claims based on extreme hardship.
Claims against insurers. Any claims for costs of cleanup and
removal, civil penalties or damages by the state and any claim for
damages by any injured person, may be brought directly against the bond,
the insurer, or any other person providing evidence of financial
responsibility.
Application of article. For purposes of cleanup and removal
of any public or private ground water supply system contaminated by a
discharge occurring either before or after the effective date of article
twelve of this chapter, all relevant provisions of article twelve of
this chapter shall apply.
PART 4 Miscellaneous
Joint rules and regulations. The commissioner and the state
comptroller are authorized to adopt, amend, repeal, and enforce such
rules and regulations pursuant to the state administrative procedure
act, as they may deem necessary to accomplish the purposes of this
article.
Enforcement of article; penalties. Any person who knowingly
gives or causes to be given any false information as a part of, or in
response to, any claim made pursuant to this article for cleanup and
removal costs, direct or indirect damages resulting from a discharge, or
who otherwise violates any of the provisions of this article or any rule
promulgated thereunder or who fails to comply with any duty created by
this article shall be liable to a penalty of not more than twenty-five
thousand dollars for each offense in a court of competent jurisdiction.
If the violation is of a continuing nature each day during which it
continues shall constitute an additional, separate and distinct offense.
Availability of additional remedies. Nothing in this article
shall be deemed to preclude the pursuit of any other civil or injunctive
remedy by any person. The remedies provided in this article are in
addition to those provided by existing statutory or common law, but no
person who receives compensation for damages or cleanup and removal
costs pursuant to any other state or federal law shall be permitted to
receive compensation for the same damages or cleanup and removal costs
under this article.
Severability. If any section, subdivision, provision, clause or
portion of this article is adjudged unconstitutional or invalid by a
court of competent jurisdiction, the remainder of this article shall not
be affected thereby.
Construction. This article, being necessary for the general
health, safety, and welfare of the people of this state, shall be
liberally construed to effect its purposes.
Reports. The commissioner and the administrator shall make an
annual report to the legislature and the governor which shall describe
the quality and quantity of spills of petroleum, the costs and damages
paid by and recovered for the fund, and moneys spent pursuant to
subdivision three of section one hundred eighty-six of this article
including amounts spent for oil spill prevention and training activities
conducted, and equipment purchased, and the economic and environmental
impact on the state as a result of the administration of this article.
Effect of federal legislation. If the United States congress
enacts legislation providing compensation in the event of a discharge of
petroleum, the commissioner shall determine to what degree that
legislation provides the needed protection for our citizens, businesses
and environment and shall make the appropriate recommendations to the
legislature for amendments to this article.
ARTICLE 13 Miscellaneous Provisions; Saving Clause; Laws Repealed; When to Take Effect
Collection of penalties. 1. An action to recover any penalty
imposed under the provisions of this chapter, except penalties imposed
under article six, may be brought in any court of competent jurisdiction
in this state on order of the commissioner and in the name of the people
of the state of New York. In any such action all penalties incurred up
to the time of commencing the action may be sued for and recovered
therein and the commencement of an action to recover any such penalty
shall not be, or be held to be, a waiver of the right to recover any
other penalty. In case of recovery of any amount in an action brought to
recover any such penalty the people shall be entitled to recover full
costs, of course, and at the rates provided for civil actions.
2. Judgments recovered may be enforced by contempt. A person taken
into custody shall be confined for not less than one day, and at the
rate of one day for each dollar of the amount of the judgment recovered.
No person shall be imprisoned more than once, or for more than six
months on the same judgment. Imprisonment shall not operate to satisfy
a judgment.
3. No person shall be excused from testifying or producing any books,
papers or other documents in any civil action to recover any such
penalty, upon the ground that his testimony might tend to convict him of
a crime, or to subject him to a penalty or forfeiture. But no person
shall be prosecuted, punished, or subjected to any penalty or forfeiture
for or on account of any act, transaction, matter or thing concerning
which he shall, under oath, have testified or produced documentary
evidence and no testimony so given or produced shall be received against
him upon any criminal investigation or proceeding; provided, however,
that no person so testifying shall be exempt from prosecution or
punishment for any perjury committed by him in his testimony. Nothing
herein contained is intended to give, or shall be construed as in any
manner giving, unto any corporation, immunity of any kind.
4. A person who has violated any of such provisions and who desires to
compromise and settle his civil liability therefor may appear with the
inspector before a court or justice having jurisdiction in civil
actions, and thereupon such person may upon consent of the inspector,
compromise and settle his liability for such civil penalties for an
amount agreed upon between said court or justice, the inspector and the
person who committed such violation, which amount shall be not less than
ten dollars nor more than the amount for which such person would be
liable in a civil action for penalties. If such compromise be made, such
person shall forthwith subscribe his name to a statement setting forth
concisely the facts constituting such violation, the amount agreed upon,
and that a judgment may be entered against him for that sum. Upon said
statement being sworn to before and filed with said court or justice, he
shall forthwith enter in his civil docket a record of the proceedings
and the amount of the judgment. Said court or justice shall upon the
entry of said judgment be entitled to a fee of two dollars and fifty
cents to be paid by the person who committed such violation. A judgment
entered into pursuant to this subdivision may be enforced by an
execution against the property of the defendant; but no body execution
shall be issued thereon.
5. The court or justice before whom any person shall be tried or
before whom a compromise of the civil penalties shall have been made, or
the clerk of the court, if there be a clerk, shall at the termination of
such trial or proceeding, forthwith mail or deliver to the department at
Albany, a certified statement of the disposition of the case or
proceeding, giving the date thereof, the name of the defendant, the date
and place of the violation, the name of each witness sworn in support of
the charges and the costs of the court or fees of the justice, the fees
of the constable or other peace officer, police officer or traveling
navigation inspector, if any, together with the amount of the penalty
paid.
6. The provisions of this section shall in no way prohibit the
prosecution of violations of this chapter in any court of competent
jurisdiction in the same manner as other offenses and crimes.
Disposition of fees and penalties. 1. On the first day of each
month or within ten days thereafter, all fines and penalties collected
for violations of this chapter, except for violations of article six,
under judgment of any town or village court or justice or pursuant to
compromise, shall be paid over by such court or justice to the
comptroller of the state, with a statement accompanying the same,
setting forth the action or proceeding in which such moneys were
collected, the name and residence of the defendant, the nature of the
offense, and the fine or penalty imposed.
2. All fines and penalties, except for violations of article six of
this chapter, collected for violations of this chapter by courts
operating pursuant to section thirty-nine of the judiciary law shall be
paid to the state commissioner of taxation and finance on a monthly
basis no later than ten days after the last day of each month.
3. All fines and penalties imposed for violations of article four of
this chapter under judgment of any town or village court or justice or
pursuant to compromise which are paid over by such court or justice to
the comptroller shall be deposited by the comptroller into the "I love
NY waterways" boating safety fund established pursuant to section
ninety-seven-nn of the state finance law.
Application and saving clause. Any work or proceeding initiated
under any existing law which is repealed through the enactment of this
chapter shall be continued legally to its termination and conclusion
subject to the provisions of and in accordance with the procedure
prescribed by such law. It is the intent that upon the enactment of
this chapter into law all proceedings undertaken thereafter relative to
the navigable waters of the state, as defined in this chapter, shall be
administered under the authority of and by the provisions contained in
this chapter. Upon all waters where the United States authorities have
established active control of navigation, any part of this chapter which
is contrary to or in conflict with the United States navigation law, or
with regulations issued pursuant thereto, shall be considered
inoperative and the pertinent part of the United States law or
regulation shall apply. It is the intent upon enactment of this chapter
that no provision hereof shall affect or impair in any manner whatsoever
any provision of chapter two hundred eighty-five of the laws of nineteen
hundred forty. If any clause, sentence, paragraph or part of this
chapter shall, for any reason be adjudged by any court of competent
jurisdiction to be invalid, such judgment shall not affect, impair or
invalidate the remainder thereof but shall be confined in its operation
to the clause, sentence, paragraph or part thereof, directly involved in
the controversy in which such judgment shall have been rendered. Nothing
contained in this chapter shall be construed to abridge the terms of
office of the board of commissioners of pilots in the city of New York;
nor to limit or restrict the powers of such board under article six, nor
to confer a power or impose a duty upon the commissioner relating
thereto.
Laws repealed. Chapter forty-two of the laws of nineteen
hundred nine, entitled "An act relating to navigation, constituting
chapter thirty-seven of the consolidated laws," and chapter two hundred
and ninety-two of the laws of nineteen hundred forty, entitled "An act
relating to navigation on and use of the waters of Lake Placid" and all
acts and parts of acts amendatory of or supplemental to any of such
chapters or sections and all acts or parts of acts inconsistent with the
provisions of this chapter are hereby repealed. The repeal of chapter
forty-two of the laws of nineteen hundred nine as amended, and chapter
two hundred and ninety-two of the laws of nineteen hundred forty shall
not operate or be construed to terminate any license heretofore issued
thereunder or affect the rights of any person holding such a license;
nor shall such repeal affect any action or proceeding now pending in any
court, or any act done or right accruing, accrued or acquired, or
penalty, forfeiture or punishment inflicted pursuant to such chapters,
or either of them, prior to the date this act takes effect; but the same
may be asserted, enforced, prosecuted or inflicted as fully and to the
same extent as if this act had not been passed, or such chapters had not
been repealed.
When to take effect. This act shall take effect July first,
nineteen hundred forty-one, except section seventy-one thereof, which
section shall take effect January first, nineteen hundred forty-two.