I figured it’s been a while so I’ll “weigh” in on this one.
The ultimate cause of the accident, assuming the facts presented are accurate, was that the kayaker(s) that were struck were not showing the required lighting configuration and are therefore completely to blame for the accident.
Navigation laws are similar in the US and Canada, so without digging too deeply looking for case law on this topic I found a similar case (underway powerboat strikes an unlighted vessel at night). The case was decided by the British Columbia Supreme Court. I am sure anyone who wishes will be able to find other such accidents to compare it with.
Quote:
Collision – Small Vessels – Improper lighting – Liability
Thatcher v Schell, 2005 BCSC 1121
This case involved a collision on Okanagan Lake between a 26' sailboat operating under power and a 19' motorboat. The collision occurred at dusk. Both vessels were destroyed and the occupants of each were injured. The owner of the sailboat alleged that the collision was caused by the negligence of the other vessel in proceeding at an excessive speed and failing to maintain a proper lookout. The owner of the motorboat argued that the collision was caused by the negligence of the sailboat in failing to have the proper running lights and in turning to port immediately before the collision instead of to starboard as required by the collision regulations. It was uncontested that the driver of the motorboat did not see the sailboat until immediately before the collision and took no steps to avoid the collision. After reviewing all of the evidence the Judge found as a fact that the sailboat was not properly lit and that this was the cause of the collision. The owner/operator of the sailboat was therefore held to be completely at fault.
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So
unless there is NH case law to the contrary it stands to reason the kayaker is the liable party.
Kudos to Sue15 and her crew for taking quick action preventing this from becoming much much worse. It's unfortunate that they are going to suffer emotionally because of the bonehead move of a couple of kayakers!