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Some Liability Issues
for Massachusetts Shellfish Farmers
(Click here to view
this document as a PDF file.)
As Massachusetts’ shellfish aquaculture industry
continues to grow, issues of risk and liability may arise. This
bulletin describes some of the potential risks and liabilities,
while providing some tips for protecting shellfish farmers, shellfish
consumers, and the public from harm.
It takes a great deal of time and energy to get
a shellfish farm up and running, from getting an area licensed,
planting the juvenile shellfish, to pulling nets and scrubbing gear.
When the time comes to harvest those shellfish, it’s also
time to think about what is at stake and how risks can be minimized.
What are some of the liabilities associated with a shellfish farm?
For example, what happens if a member of the public is injured on
a licensed area? What responsibilities do shellfish farmers have
for employee injuries? What happens if a customer becomes ill after
consuming cultured shellfish?
Many shellfish aquaculturists head out to
work their farm when the tide is out and their farms are exposed.
Photo by Bill Walton.
In Massachusetts, licensed aquaculturists are granted the exclusive
use of an area for the purposes of growing shellfish (§ 57
of Chapter 130, Massachusetts General Laws). Under the law, the
public has reserved the right to use the waters and lands as long
as that use is compatible with aquaculture. What does that mean?
It means that no one without the consent of the license holder can
take shellfish from that area, disturb the area or the growth of
the shellfish, discharge any substances that injure the shellfish,
or willfully destroy or remove the gear. And if they do? Violators
may be sued by the license holder for triple damages and costs under
§ 63 of Chapter 130, Massachusetts General Laws.
In the event of a lawsuit, proper documentation
is critical for both the plaintiff and the defendant. Losses should
be completely documented, including the specific extent of damage
caused, any costs incurred, and any steps taken to repair the damages.
In addition to written records and receipts, it is advisable to
seek professional legal advice. It is also a good idea to notify
the shellfish officer and the town, as the town may choose to pursue
Injury to a Member of the Public
Responsible shellfish farmers should do their best to maintain a
safe and clean shellfish farm. Still, the Massachusetts coastline
is regularly visited by residents and tourists, and the potential
for someone to be injured on a shellfish farm—
either at low tide when equipment is exposed, or at high tide when
it’s no longer visible—is real.
Under tort law, compensation-seeking lawsuits associated
with such injuries are also a realistic possibility. According to
a decision handed down by the Massachusetts Superior Court in 2000
(McCarthy v. Town of Hamilton, 11 Mass. L. Rep. 347), “Before
liability for negligence can be imposed, there first must be a legal
duty owed by the defendant to the plaintiff, and a breach of that
duty proximately resulting in the injury” (Mass. Super. 2000).
A land owner owes a duty of care to all visitors, and although a
shellfish farmer may very well not own the land, it could reasonably
be argued that the farmer has a degree of control over that land.
“A duty of care may arise from the right to control land,
even where the person held to such a duty does not own the land
in question.” (McCarthy). Therefore, a shellfish farmer could
be considered to owe a duty of care to all lawful visitors.
To recover damages an injured person “must
establish that she suffered bodily harm as a result of conduct for
which the defendant can be held liable, such as the defendant’s
negligence or breach of warranty.” (Second Edition of Massachusetts
Tort Damages § 3-1). How is negligence defined? Negligence
is failing to exercise reasonable care, which, in turn, is defined
as the amount of care “which a reasonable man in his position,
information and competence, would recognize as necessary to prevent
the act from creating an unreasonable risk of harm to another”
(Restatement (Second) of Torts § 298 (1965)).
The most basic form of reasonable care is maintenance
of markers to warn visitors about the conditions in the area to
prevent injuries before they occur. According to § 61 of Chapter
130, Massachusetts General Laws, shellfish farmers must plainly
mark the licensed area “by monuments, marks or ranges and
by stakes or buoys, with the number of the license painted in figures
at least two inches in height in a conspicuous place on each of
said stakes or buoys or on flags attached thereto.” It would
be wise to check local regulations for any additional requirements
upon local shellfish farmers.
Regular maintenance of these markers is essential.
Additionally, it is advisable that the farmer keep proof of such
efforts. This could be accomplished by keeping a written log book
of checks and maintenance, although photographs (taken every couple
of months or some regular interval) would be even better. Any damaged
or missing markers should be repaired within a reasonable amount
of time. In the event of a lawsuit based on negligence, accurate
and complete records of site maintenance will be the best defense.
Although it is advisable to maintain the area’s
markers for the safety of the public and the protection of the shellfish
and gear, some might argue that a well-marked shellfish farm is
an open and obvious danger. The Supreme Court of Massachusetts has
stated that a landowner has no duty of care with regard to a risk
that is open and obvious to a person of average intelligence; the
dangers of visiting such an area should be apparent. Note, however,
that there have been no cases in which this has been applied to
shellfish farming operations. Following the industry’s current
best management practices, which are often adopted by courts as
the reasonable standard of care, is advisable.