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Some Liability Issues for Massachusetts Shellfish Farmers
September 2004

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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?

working on the flats
Many shellfish aquaculturists head out to work their farm when the tide is out and their farms are exposed. Photo by Bill Walton.

Some Background

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 the matter.

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.

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