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United States. Congress. House. Committee on the J.

Boating and Aviation Operation Safety Act : hearing before the Subcommittee on Commercial and Administrative Law of the Committee on the Judiciary, House of Representatives, One Hundred Fourth Congress, first session, on H.R. 234, to amend Title 11 of the United States Code to make nondischargeable online

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Online LibraryUnited States. Congress. House. Committee on the JBoating and Aviation Operation Safety Act : hearing before the Subcommittee on Commercial and Administrative Law of the Committee on the Judiciary, House of Representatives, One Hundred Fourth Congress, first session, on H.R. 234, to amend Title 11 of the United States Code to make nondischargeable → online text (page 1 of 3)
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V A BOATING AND AVIATION OPERATION SAFETY
\ ACT



Y 4. J 89/1:104/10



Boating and fiviation Operation Safe... IING

„^. „aE the

SUBCOMMITTEE ON
COMMERCIAL AND ADMINISTRATIVE LAW

OF THE

COMMITTEE ON THE JUDICIARY
HOUSE OF REPRESENTATIVES

ONE HUNDRED FOURTH CONGRESS

FIRST SESSION

ON

H.R. 234

TO AMEND TITLE 11 OF THE UNITED STATES CODE TO MAKE
NONDISCHARGEABLE A DEBT FOR DEATH OR INJURY CAUSED BY
THE DEBTOR'S OPERATION OF WATERCRAFT OR AIRCRAFT WHILE

INTOXICATED



JULY 13, 1995



%



C^-.- V-

Serial No. 10 '^i-'




Printed for the use of the Committee on the Judiciary



U.S. GOVERNMENT PRINTING OFFICE
WASHINGTON : 1995



For sale by the U.S. Government Printing Office
Superintendent of Documents, Congressional Sales Office. Washington, DC 20402
ISBN 0-16-047673-9



\ A BOATING AND AVIATION OPERATION SAFEH
\ ACT



Y 4. J 89/1:104/10

Boating and Aviation Operation Safe... iING



^^. ^ae the

SUBCOMMITTEE ON
COMMERCIAL AND ADMINISTRATIVE LAW

OF THE

COMMITTEE ON THE JUDICIARY
HOUSE OP REPRESENTATIVES

ONE HUNDRED FOURTH CONGRESS

FIRST SESSION
ON

H.R. 234

TO AMEND TITLE 11 OF THE UNITED STATES CODE TO MAKE
NONDISCHARGEABLE A DEBT FOR DEATH OR INJURY CAUSED BY
THE DEBTOR'S OPERATION OF WATERCRAFT OR AIRCRAFT WHILE

INTOXICATED



JULY 13, 1995 f '^^^^-i



/.%..



Serial No. 10 *^;








Printed for the use of the Committee on the Judiciary



U.S. GOVERNMENT PRINTING OFFICE
93-423 CC WASHINGTON : 1995

For sale by the U.S. Government Printing Office
Superintendent of Documents. Congressional Sales Office. Washington, DC 20402
ISBN 0-16-047673-9



COMMITTEK ON THE JUDICIAIiY



HKNRY J. HYDK, Illinoie, Chairman



CARLOS J. MOORHKAD, California
F. JAMES SKNSKXBRKN'NP:R, Jr.,

Wisconsin
BILL McCOLLUM, Horida
GKORGK W. GKKAS, Pennsylvania
HOWARD COBLK, North Carolina
LAMAR SMITH, Texas
STEVKN SCHIFF, New Mexico
ELTON GALLEGLY, California
CHARLES T. CANADY, Florida
BOB LNGLIS, South Carolina
BOB GOODLATTE, Virginia
STEPHEN E. BUYf:R, Indiana
MARTIN R. HOKE, Ohio
SONNY BONO, California
FRED HEINEMAN, North Carolina
ED BRYANT, Tennessee
STEVE CHABOT, Ohio
MICHAEL PATRICK FLANAGAN, Illinois
BOB BARR, Georgia



JOHN CONYERS, Jk., Michigan
PATRICIA SCHROEDER, Colorado
BARNEY FRANK, Massachusetts
CHARLES E. SCHUMER, New York
HOWARD L. BERMAN, California
RICK BOUCHER, Virginia
JOHN BRYANT, Texas
JACK REED, Rhode Island
JERROLD NADLER, New York
ROBERT C. SCOTT, Virginia
MELVIN L. WATT, North Carolina
XAVIER BECERRA, California
JOSE E. SERR/\NO, New York
ZOE LOFGREN, California
SHEILA JACKSON LEE. Texas



AlAN F. Coffey, Jr., General Counsel/Staff Director
Julian Epstein, Minority Staff Director



Subcommittee on Commercial and Administrative I^w



GEORGE W. GEKAS, Pennsylvania, Chairman



HENRY J. HYDE, Illinois

BOB INGLIS, South Carolina

STEVE CHABOT, Ohio

MICHAEL PATRICK FLANAGAN, Illinois

BOB BARR, Georgia



JACK REED, Rhode Island
JOHN BRYANT, Texas
JERROLD NADLER, New York
ROBERT C. SCOTT, Virginia



Raymond v. Smietanka, Chief Counsel
CHARI.es E. Kern II, Counsel

Roger T. Fleming, Counsel
Agnieszka P'RYSZMAN, Minority Counsel



(II)



CONTENTS



HEARING DATE



Page

July 13, 1995 1

TEXT OF BILL

H.R. 234 3

OPENING STATEMENT

Gekas, George W., a Representative in Congress from the State of Pennsylva-
nia, and chairman. Subcommittee on Commercial and Administrative Law . 1

WITNESSES

Case, Stephen H., vice chair, I^egislative Committee, National Bankruptcy

Conference 11

Ehlers, Hon. Vernon J., a Representative in Congress from the State of

Michigan 5

Gilmore, Bruce A., director. Boating Administration, Maryland Department

of Natural Resources 9

O'Donnell, Gerald M., president, NACTT, Alexandria, VA, on behalf of the

National Association of Chapter 13 Trustees 15

LETTERS, STATEMENTS, ETC., SUBMITTED FOR THE HEARING

Case, Stephen H., vice chair, I^egislative Committee, National Bankruptcy

Conference: Prepared statement 13

Ehlers, Hon. Vernon J., a Representative in Congress from the State of

Michigan: Prepared statement 6

Gilmore, Bruce A., director. Boating Administration, Maryland Department

of Natural Resources: Prepared statement 10

O'Donnell, Gerald M., president, NACTT, Alexandria, VA, on behalf of the

National Association of Chapter 13 Trustees: Prepared statement 16



(III)



BOATING AND AVIATION OPERATION SAFETY

ACT



THURSDAY, JULY 13, 1995

House of Representatives,
Subcommittee on Commercial and

Administrative Law,
Committee on the Judiciary,

Washington, DC.
The subcommittee met, pursuant to notice, at 10:01 a.m., in room
2226, Rayburn House Office Building, Hon. George W. Gekas
(chairman of the subcommittee) presiding.

Present: Representatives George W. Gekas, Bob Inghs, Michael
Patrick Flanagan, and Jack Reed.

Also present: Charles E. Kern H, counsel; Rebecca Ward, sec-
retary; and Agnieszka Fryszman, minority counsel.

OPENmG STATEMENT OF CHAIRMAN GEKAS

Mr. Gekas. The hour of 10 o'clock having arrived, this hearing
is now called to order. We will be compelled to recess until a hear-
ing quorum has arrived, and so we now recess until a quorum shall
arrive.

[Brief recess.]

Mr. Gekas. Noting the presence of our first witness, our col-
league, Congressman Ehlers. We will accommodate him as soon as
a quorum should appear.

[Brief recess.]

Mr. Gekas. We note the presence of the gentleman from Rhode
Island, Mr. Reed, ranking minority. His presence produces a
quorum for the purposes of this hearing, and we welcome all. We
will launch into this special issue with an opening statement from
the Chair followed by one, if so desired, by the minority ranking
member, and then we will hear the testimony of our first witness.

It is a simple issue, one that arises out of law that is already
firmly fixed in the books of our Federal Government with respect
to bankruptcy. It has to do with whether or not we should be in-
cluding watercraft and aircraft under the aegis of the definition of
motor vehicle; should we take steps to say that any moving object
is a motor vehicle, or should we be more specific and simply insert
into the language of the law the actual description of the craft
about which we speak.

The courts seem to be divided on it, as everyone knows, and giv-
ing us even more impetus to act to make certain once and for all
that there be no double interpretation, misinterpretation or any

(1)



kind of mixup which can cause havoc in and out of the bankruptcy
courts.

The testimony that we will be listening to today will cover the
waterfront — what a nice way to put it — from the standpoint of the
Members of Congress who are concerned about it, such as Con-
gressman Ehlers, to the bankruptcy community, which of course
has an important role to play in the outcome of this legislation, and
once it is adopted, how it will be effectuated.

[The bill, H.R. 234, follows:]



104th congress

1st Session



H. R. 234



To amend title 11 of the United States Code to make nondiseliarpeable
a debt for deatli or injur\- caused by the debtor's operation of watereraft
or aircraft while intoxicated.



IX TIIE HOUSE OF REPRESEXTATR^S

Jaxuaky 4, 1995

Mr. EULEKS introduced the following: bill; which was referred to the

Committee on the Judieian'



A BILL

To amend title 11 of the United States Code to make
nondischargeable a debt for deatli or injury' caused by
the debtor's operation of watereraft or aircraft while
intoxicated.

1 Be it enacted hy the Senate and House of Representa-

2 tives oftlie United States of America in Congress assembled,

3 SECTION 1. SHORT TITLE.

4 Tliis Act may be cited as the "Boating and A\dation

5 Operation Safety Act of 1994".



2

1 SEC. 2. AMENDMENT.

2 Section 523(a)(9) of title 11, United States Code, is

3 anieiuk'd by inserting ", watereraft, or aircraft" after

4 "motor vehicle".

5 SEC. 3. EFFECTIVE DATE; APPLICATION OF AMENDMENT.

6 (a) Ep^pECTR^ Date. — Except as pro\ided in sub-

7 section (b), this Act and the amendment made by section

8 2 shall take effect on the date of the enactment of this

9 Act.

10 (b) iVl^PLlCATlox OF iLMEXDMEXT. — The amendment

1 1 made by section 2 shall not apply \dth respect to cases

12 conmienced under title 11 of the United States Code be-

13 fore the date of the enactment of this Act.

O



HR 234 IH



Mr. Gekas. I yield to the gentleman from Rhode Island, if he
wishes to make a statement.

Mr. Reed. Thank you, Mr. Chairman.

I just want to commend you and your counsel for organizing the
hearing so well and Mr. Ehlers for his interest in this important
topic. I am very interested in hearing the witnesses, so I would
yield back to the chairman.

Mr. Gekas. The Chair will invoke a 5-minute rule for the testi-
mony of witnesses and will adhere strictly to it. We welcome our
colleague. Congressman Ehlers, to the witness table. You may pro-
ceed.

STATEMENT OF HON. VERNON J. EHLERS, A REPRESENTATIVE
m CONGRESS FROM THE STATE OF MICHIGAN

Mr. Ehlers. Thank you very much, Mr. Chairman, Mr. Reed.

First of all, I want to thank you and the subcommittee for giving
me the opportunity to testify on this legislation, H.R. 234, which
would make nondischargeable through bankruptcy a debt incurred
as a result of the operation of a boat or airplane while under the
influence of alcohol.

I appreciate your comment about covering the waterfront in this
hearing. It is very appropriate and I just hope we do not engage
in flights of fancy when we deal with the aircraft part of it.

This bill — my bill seeks to correct

Mr. Gekas. We may strike that from the record, I am not sure.
But you may proceed.

Mr. Ehlers. All right. Thank you. I appreciate your striking
that.

My bill seeks to correct what I believe was a bill-drafting over-
sight involving our bankruptcy laws and, in fact, this bill may be
a prime candidate for consideration on the floor on Corrections
Day, because I am seeking to correct what I believe was an over-
sight or, rather, another possibility is that the intent is not being
honored by the courts in the interpretations they have made.

Current law states if an individual incurs a debt as a result of
their operation of a motor vehicle under the influence of alcohol,
they cannot have that debt discharged through a declaration of
bankruptcy. Since this law was originally enacted, some courts
have interpreted the statute's use of the term "motor vehicle" as
meaning automobile.

Mr. Chairman, as you know, my home State of Michigan has an
extraordinarily robust boating industry. And one thing I learned
during my career in the legislature there is whenever we dealt
with drunk driving issues we had to include watercraft and aircraft
but particularly watercraft because a great many accidents occur
when operators of watercraft are drunk. It seems to somehow be
accepted that when you get on a boat it is OK to hold a can of beer
in your hand all the time, and we have some very, very serious ac-
cidents in my State as a result. I am sure you have the same situa-
tion in your State.

Over the years we have worked very hard on the State level —
as have many other States — to make it perfectly clear that we view
drunk boating as just as serious a crime as drunk driving and we



have consistently written our drunk driving laws to explicitly in-
clude drunk boating.

H.R. 234 simply seeks to extend this notion of equal treatment
of drunk driving and drunk boating to the Federal level — as it re-
lates to our Federal bankruptcy laws. Since the courts have ruled
that the Bankruptcy Code, as it is currently written, only refers to
automobiles, my bill specifically adds "watercraft" to this section of
the Bankruptcy Code.

In addition, while it has nowhere near the public profile of drunk
driving and drunk boating, the operation of aircraft under the in-
fluence of alcohol and drugs has also been a problem — with far
higher potential for injury and death in the event of an accident.
H.R. 234 recognizes this and includes the drunk operation of air-
craft as well.

Again now, I recognize there are some opponents of the bill who
will argue that this is really not needed; that boating accidents,
and particularly aircraft accidents, are so isolated that we do not
need to cover this. They also argue that it is simply improper to
protect from bankruptcy proceedings certain things and not other
things. But I urge you when you listen to those arguments, if they
are offered here this morning or elsewhere, to recognize that we al-
ready have in law the aspect dealing with automobiles, and I think
it is simply inequitable and improper to have it apply to auto-
mobiles and not to watercraft or aircraft. I am trying to correct
what I regard as an oversight in the original bill.

Again, Mr. Chairman, I want to thank you and the subcommittee
for the opportunity to testify today. While this issue may not gar-
ner a great deal of public attention, those who have been nega-
tively impacted by the lack of clarity in this section of the Bank-
ruptcy Code have suffered significantly and we ought to protect fu-
ture victims of drunk boating — and flying — ^by making the simple
fix called for in this bill.

I thank you very much, and I would be happy to answer ques-
tions.

Mr. Gekas. We thank the gentleman.

[The prepared statement of Mr. Ehlers follows:]

Prepared Statement of Hon. Vernon J. Ehlers, a Representative in Congress
From the State of Michigan

Mr. Chairman, first, I want to thank you and the Subcommittee for giving me the
opportunity to testify today on my legislation, H.R. 234, which would make
nondischargable through bankruptcy a debt incurred as a result of the operation of
a boat or airplane while under the influence of alcohol.

My bill seeks to correct what I believe was a bill-drafting oversight involving our
bankruptcy laws. Current law states that if an individual incurs a debt as a result
of their operation of a motor vehicle under the influence of alcohol, they cannot have
that debt discharged through a declaration of bankruptcy. Since this law was origi-
nally enacted, the courts have generally interpreted the statute's use of the term
"motor vehicle" as moaning "automobile. '

Mr. Chairman, as you know, my home state of Michigan has an extraordinarily
robust boating industry. Over the years, we have worked hard on the state level —
as have many other states — to make it perfectly clear that we view drunk boating
as serious a crime as drunk driving and we have consistently written our drunk
driving laws to explicitly include drunk boating.

H.R. 234 simply seeks to extend this notion of equal treatment of drunk driving
and drunk boating to the federal level — as it concerns our federal bankruptcy laws.
Since the courts have ruled that the bankruptcy code, as it is currently written, only



refers to automobiles, my bill specifically adds "water crafl" to this section of the
bankruptcy code.

In addition, while it has nowhere near the public profile of drunk driving and
drunk boating, the operation of aircraft under the influence of alcohol and drugs has
also been a problem — with far higher potential for injury and death in the event
of an accident. H.R. 234 recognizes this and includes the drunk operation of aircraft
as well.

Again, Mr. Chairman, I want to thank you and the Subcommittee for the oppor-
tunity to testify today. While this issue may not garner a great deal of public atten-
tion, those who have been negatively impacted by the lack of clarity in this section
of the bankruptcy code have suffered significantly and we ought to protect future
victims of drunk boating — and flying — by making the simple fix called for in this
bill.

Mr. Gekas. We now acknowledge the attendance of the gen-
tleman from Illinois, Mr. Flanagan, and if the gentleman from
Michigan would agree, we will pose some questions.

One piece of information that I would like to ask is: did your
State sanction this type of action in the criminal statutes, like
drunk driving for motor vehicles, with respect to licenses to travel?
That is, the motor vehicle codes in most States require suspension
of license for offenses of drunk driving of a motor vehicle. Does
your State have similar sanctions for watercraft?

Mr. Ehlers. It does not because it does not have the same licens-
ing procedure. And that is the problem. But we do have training
requirements and things of that sort for those who are involved in
accidents. We have age limits on those who may operate
watercraft. So we are approaching the status of licensing, but up
to this point we do not have licensing for watercraft operators.

Mr. Gekas. Have any cases been brought to your attention of
people filing bankruptcy who have had a conviction of drunk
watercrafting?

Mr. Ehlers. No, I cannot give you examples. I would be happy
to do the research and provide those, if you wish.

Mr. Gekas. I have no further questions. We, by the way, will ac-
cept your written statement for the record without objection.

The gentleman from Rhode Island.

Mr. Reed. I want to commend Mr. Ehlers for his interest in this
topic. I'm from Rhode Island, which is the Ocean State, and we
have a lot of boaters. Particularly in the next few weeks, with the
weather soaring toward 100, we regrettably will have incidents
with people operating while intoxicated. As you suggested, we don't
have comprehensive licensing or the thorough regulatory agenda
we have with motor vehicles, so this is an issue I think we should
look at carefully. Obviously, we will listen to the technical experts
from the bankruptcy bar, but I commend you for your interest and
your efforts, Mr. Ehlers. Thank you.

Mr. Ehlers. Thank you. I appreciate that.

Mr. Gekas. Does the gentleman from Illinois have any questions?

Mr. Flanagan. Yes, Mr. Chairman.

I also commend you for your efforts. I was a little perplexed
about this but you and I have talked a bit about it and I see the
value in it at least on the surface.

I have two operational questions on how such a law might be im-
plemented. As you have said in the great State of Michigan, there
is no licensing that goes on with boating, but as we are wrestling
now in Illinois in redefining what a drunk driver is and to what



8

level of intoxication he has to be to be defined as a drunk driver.
How would that be used from State to State, particularly in Michi-
gan where there is no licensing requirement and apparently, I
would assume, no definition of what a drunk boater is?

Mr. Ehlkrs. No, on the contrary. We have adopted legislation
there setting the same level for drunk boating and drunk flying as
we set for drunk driving of a motor vehicle. I should correct that
and say we actually have more stringent requirements on the
drunk flying because it is a more complex operation.

Mr. Flv\NAGAN. I would think so. And the implementation of it
would vary from State to State?

Mr. Ehlers. Yes, presumably it would in terms of the definition
of the alcohol content at which you are considered to be either.

Mr. Flanagan. Illinois is considering going to .08, which is
breathing near a bottle, as far as I am concerned.

Mr. Ehlers. Well, Michigan has considered going to that. We
have also considered having different levels for driving under the
influence and drunk driving. I expect within the next few years
that will be passed.

Mr. FlANAGAN. Just anticipating one question and I will give you
a chance to rebut it now before we hear it later, what deterrent ef-
fect do you think this will have to drunk boating?

Mr. Ehlers. The deterrent effect is, of course, very hard to meas-
ure as it is with many of the laws we pass. It will have a deterrent
effect, but it is going to be long term. I don't think anyone who is
drunk driving while they are on their boat is going to think I better
not do this because I might be hauled into bankruptcy.

However, when these events do happen, and when they know of
a friend who has gone through it, then it begins to have a great
deterrent effect particularly when their spouse is not drinking says,
hey, you better stop, because we may get in trouble the way John
Smith did.

So in the long term it has a deterrent effect, but that is only
part. The other part is the victim has the opportunity to be made
whole by, virtually, whatever judgment they have obtained.

Mr. Flanagan. Well, I thank you.

Mr. Gekas. If the gentleman would yield for just a moment to
follow up with some questions?

Mr. Fl^ANAGAN. Certainly.

Mr. Gekas. The Bankruptcy Code itself talks about coverage for
death or personal injury caused by the debtor's operation of a
motor vehicle if such operation was unlawful because the debtor
was intoxicated from using alcohol, a drug, or other substance. So
all we have to do is make sure that that description covers all 50
States in bankruptcy.

Mr. Fi^NAGAN. So are we looking at a Federal statute that would
make it unlawful to operate a boat while intoxicated and then de-
fine intoxication?

Mr. Gekas. We would make it a nondischargeable debt much like
that which accompanies an untoward result from a motor vehicle
accident and apply it to aircraft and watercraft. That is the thrust
of the bill.

Mr. Fl^NAGAN. Thank you, Mr. Chairman.



Mr. Gekas. With that, we thank our colleague and we will report
to him the outcome of our proceedings.

Mr. Ehlers. Thank you.

Mr. Gekas. And we invite to the witness table, Mr. Stephen
Case, vice chairman of the Committee on Legislation for the Na-
tional Bankruptcy Conference; Gerald M. O'Donnell, president of
the National Association of Chapter 13 Trustees; and Bruce A. Gil-
more, director, Boating Administration, Maryland Department of
Natural Resources.

I think it might be appropriate to have Mr. Gilmore testify first
so he can give us some practical application of the problem and
then see how our bankruptcy community will be treating it once we
launch the watercraft through the flights of fancy that Mr. Ehlers
was describing.

Mr. Gilmore.

STATEMENT OF BRUCE A. GILMORE, DIRECTOR, BOATING AD-
MINISTRATION, MARYLAND DEPARTMENT OF NATURAL RE-
SOURCES

Mr. Gilmore. Mr. Chairman, members of the subcommittee,
thank you for inviting me here today. I very much appreciate being
here. Any time that I can promote safe boating in any way, I leap
at that opportunity.

Congressman Ehlers was a little modest about the number of
registered boats in Michigan. Michigan and Illinois have some of
the largest numbers of registered boats, even larger than some of
the coastal States, certainly larger than Maryland. We have
190,000 registered and documented vessels, but our numbers pale
in relation to those of some of the Midwestern States with their
many inland waterways and rivers and lakes.

So this is an issue that attends not only to those traditional
areas of boating that may leap to mind, such as the coastal States
of Florida or maybe southern California or even the Atlantic coast;
this is an issue that really reaches all across the country. And I
would like to say that boating is a tremendous industry; it is a tre-
mendous segment of the recreational industry.

In Maryland, which has a rather midlevel number of boats, it is
a billion dollar industry, just recreational boating. It generates jobs
and revenues that are vital to our State's tourism economy.

By the same token, it is only an industry that is good and fun
if it is safe. It is my belief that the safer it is, the more economi-
cally viable it is. And the safer it is, the more enjoyable it is.

I have a written statement that is somewhat mundane in terms
of facts and figures, but what I would like to do today, if I may,
with the chairman's leave, is to demonstrate the appeal of boating
as the industry generates that appeal in terms of the kinds of boats
that it is manufacturing, the kinds of boats that it is trying very
much to sell, and how we have on the scene in the last several
years, very few years, the new watercraft called personal
watercraft, which are extraordinary machines, lots of fun to ride,
but if not operated with a great deal of care, can be very dan-
gerous.

The boat that we all sort of think of as a fast boat, would be
something like this formula boat, which is, as you can see, half out



10

of the water. In fact, most of it is out of the water. I would venture
to say that that boat is powered by twin large V-8 engines. It can
probably exceed 50 knots, and that boat right now is probably
cruising maybe between 40 and 50 knots. That boat probably


1 3

Online LibraryUnited States. Congress. House. Committee on the JBoating and Aviation Operation Safety Act : hearing before the Subcommittee on Commercial and Administrative Law of the Committee on the Judiciary, House of Representatives, One Hundred Fourth Congress, first session, on H.R. 234, to amend Title 11 of the United States Code to make nondischargeable → online text (page 1 of 3)