The Salty Barrister

Boating Boozed

Fri, 08 Jul 2011 21:10:00 GMT

I was out and about on the Bay this past weekend. At a local marina, I saw a boat laden with blurry eyes and ruddy cheeks. I could tell from the pitch and cackle that there’d been some festive making and good for them, I say. That is, as long as they stay parked at the dock and off the road.

This isn’t some public service announcement, so don’t read these words like I’m preaching to you, because I’m not. Instead think of this blog entry as nothing more than a lowly sign spivened with rust and tacked poorly and lopsided to a piling.

Operating a boat while intoxicated is a crime and it’s a crime because while liquor may give you muscles and goggles, it doesn’t give you judgment. It’ll have you throttling up in darkened waters and throwing a wake in calm. Moreover, my sense is that more of us are using these common waters and low-lying kayaks, zippy jet skis and those odd-looking paddle boards are all over the place. Liquor doesn’t make navigating much less threading your way through good water any easier.

While each state’s laws will vary, Rhode Island’s boating while intoxicated law appears somewhat similar to what you find on its highways. Get nicked with a blood alcohol content that exceeds .08% and you’ve got a big problem. Or put it this way, get nicked with something over .08% and your friendly admiralty attorney will be joining you for the weekend’s festivities!

You know I’m not a fan of boating laws. I don’t want to be told to wear a PFD or get a license or affix a sticker, but with 400 miles of coastline and its share of yahoos, these liquor laws make sense. I mean, even the most hardened of you would have to agree that a liquored-up yahoo with a wide open throttle is a lot different than a liquored-up yahoo without a lifejacket.

Underway and making way, and a belated Happy Fourth of July.

--- JKF

Is that a Salty Barrister on the Horizon?!

Tue, 21 Jun 2011 20:05:00 GMT

I could slide in here with some mildly curious bit about the maritime law and ignore the fact that I've been remiss in not regularly posting to this blog. But if I did that, it'd leave me with that gnawing feeling of having ignored something that needs attention like when you're on the boat and you know the fuel filters could use a change and that stuffing box is weeping too much. You get the idea. So let me just take a few questions and get this over with so we can move on.

Where've you been, bro? I've been running around. I left my former law firm in New York to start my own maritime law practice. You can take a look at what we're doing at www.fulweilerlaw.com.

Oh, yea. Where's your office? My principal office is in Quonset Point, RI and I continue to maintain practices in Manhattan and in Fort Lauderdale, FL. I pretty much litigate up and down the East and Gulf Coasts.

So you've moved to Rhode Island? Yup. This is where I'm originally from and so it was a natural evolution. Plus, I have big expectations for Quonset and I wanted to be on the front lines, so to speak.

Quick legal question, okay? If my friend hit a navigation buoy does he have to report that? There's a regulation on this issue which you can find at 46 C.F.R. § 4.05-20. My read is that your friend will need to report the incident to the nearest Officer in Charge, Marine Inspection Office.

Underway and making way.

--- JKF

My Insurer is Trying to Break Up with Me!

Mon, 22 Nov 2010 16:14:00 GMT

Buying a policy of marine insurance is about hedging against risk. You're paying some money up front to limit the possibility of a downstream event that may or may not occur. The boat might never sink, a guest might never fall overboard and you might never strike another vessel, but that burble of potential risk is enough of a concern to justify obtaining insurance. And that's a good bet until your insurer declines a claim.

I'd venture that most boaters navigate a lifetime of waters without having to make a claim or having to rely on an insurance policy to protect them from exposure to a big loss. As a result, when a boater does face this kind of situation there's a certain amount of disbelief. When we pay for something, the thinking usually goes, we sort of expect the contracted-for performance. However, a policy of insurance is a contract and an insurer can sometimes decline coverage. For instance, risks that fall outside the agreed-upon policy language or misrepresentations by the boater at the time of procuring the insurance may be grounds for declining coverage.

What'll usually happen in these circumstances is that sometime after making a claim, you'll get a letter from the insurer or its attorney likely quoting large excerpts from your insurance policy and including a statement as to why the insurer is declining (or reserving its right to decline coverage). When this happens, a prudent mariner promptly calls his maritime attorney and seeks legal advice. These can be tough waters to navigate without a knowledgeable pilot, and you want to make sure that what you do following receipt of such a letter doesn't worsen the situation.

Finally, don't abandon ship should you ever receive a declination letter. There can be alternative arguments as to why coverage exists and, in the case of a reservation letter, an insurer is sometimes simply protecting itself until additional facts can be uncovered.

In the meantime, a Happy Thanksgiving to each of you.

Underway and making way.

--- JKF

Help! My Insurer Sent Me a Declination Letter!

Fri, 01 Oct 2010 17:24:00 GMT

Every business has its own workings. The convenience store owner knows his trade, but he wouldn't know jack about being a literary agent. While this is an admittedly obvious observation, it's helpful to acknowledge the obvious as a means to a better understanding of what we don't know. Marine insurance, for example, is a topic many folks think they have a handle of when, in reality, its many messy contours are often poorly understood.

Of course, a boat owner doesn't need to understand marine insurance chapter and verse, but knowing some things to watch for can really help protect your interests. (It's analogous to the prudent mariner keeping a watchful eye on the weather while still making lively small talk with his guests.)

One gray cloud that requires a boat owner's utmost attention is when a marine insurer declines coverage or reserves its right to subsequently decline coverage. In plain language, this means that your vessel insurer believes it isn't obligated to cover your claim. This could leave you facing the highly unpleasant situation of defending against an uninsured loss. When you receive such a notice from your insurer, it's probably a good idea to promptly retain maritime legal counsel to review the insurance company's position. Remember, insurance policies are simply contracts and while the insurer may have one interpretation, it may not be a particularly strong position. That is, you don't have to accept your insurer's position and you may have traction to argue that coverage, in fact, does exist under the policy language.

Nothing will put you to sleep faster than a dose of marine insurance on a soggy Fall day, but this is one of those topics that's worth having heard something about.

Underway and making way.

--- JKF

A Shiny New Hurricane WInd Scale

Fri, 10 Sep 2010 16:38:00 GMT

What with Hurricane Earl failing to arrive at the party (no regrets there), it occurred to me that I ought to say a few words about the National Weather Service's new hurricane scale which is in use for the first time this season.

This new scale is called the “Saffir-Simpson Hurricane Wind Scale," and as I understand things, with this scale the five hurricane wind categories remain, but they're no longer related to storm surge and flooding effects. That is, NOAA has uncoupled the storm surge predictions from the Saffir-Simpson scale. This apparently makes sense because storm surges don't correlate nicely with the size of the hurricane meaning a low category storm can have a surge larger than a storm with a higher category.

Don't fear, storm surge values will still be included in hurricane advisories and statements leaving me this morning with the distinct sense that while there's been a divorce, wind scale and storm surge are still seeing each other socially.

Underway and making way.

--- JKF

Summer Signs

Mon, 16 Aug 2010 19:25:00 GMT

Now we’re into things, huh? You’ve had some Summer happenings, a couple of picnics, a burn and a peel, and that long pull from an iced-down bottle of beer. Good memories, indeed.

The thing is, and I know you’ve shied away from conceding this, but the lawn is burnt and the Bay is starting to have that Fall'ish look around its edges... all of which means that winter storage is around the corner. And that means winter storage contracts. Even though you might have a child tugging at your pant leg, find time to read through the darn thing. No doubt you’ve got a great relationship with your marina, but when the ship hits the fan, things can rise and fall on contract language, so it’s important to understand what you’re reading. Whether it’s a word or a paragraph, if what you’re signing isn’t clear, speak to your admiralty attorney. And another good resource to keep in mind is your insurance broker. It’s a good idea to make sure that what you’re agreeing to is consistent with your insurance coverage.

That’s all I’ve got today. Work is crowding in like a subway car at rush hour and I’ve got to find a way to get some more time on the water. Underway and making way, or, as I used to say, “Standing by, Channel 16.”

--- JKF

Of Shares and Scallops

Fri, 23 Jul 2010 20:03:00 GMT

With morning coffee in hand, I was trawling recent New England court decisions looking to hook a maritime issue. Frankly, it was slim pickings until I ran across a fishermen's wage dispute. I'm always curious about the mechanics of other professions and this decision was sort of interesting for its background.

Three fishermen set sail aboard a scallop boat. Contrary to United States law, there was no written agreement memorializing the terms of their employment. It seemed that the voyage was successful and the boat returned to port with a mess of scallops that ultimately yielded a six-figure gross. The fishermen were each paid a portion of the boat's net proceeds. Well, a little while later the fishermen sued alleging various violations arising from the voyage including the lack of a written agreement. In addition to compensatory damages, the fishermen sought punitive damages for what was alleged to be egregious conduct.

The appellate court examined each of the issues and ultimately affirmed (meaning upheld) the lower court's decision which had awarded a very small adjustment to one of the fishermen and had rejected all the other claims. In connection with the punitive damages claim, the appellate court stated that the fish boat owner's violation of the statutory obligation to have a writing in place with the crew (the existence of which it was unaware) could not support such a claim. Specifically, the Court pointed out that the crew was paid under a lay-share system and that the violation was simply the lack of a fixed written employment contract.

The statute requiring, in some instances, that a written fishing agreement be in place before undertaking a voyage can be found at 46 U.S.C. § 10601.

--- JKF

Of Muscle Cars and Maritime Lawyers

Tue, 13 Jul 2010 15:35:00 GMT

On tarmac, 350 horsepower at 2,800 r.p.m. is pretty decent stuff. It'll lay a strip of warm rubber, waggle the back end, and catch some attention. Meandering home on a stretch of highway, a 1970'ish Buick GSX with the louvered rear window and backside squatted with torque growled past me in the right lane. Flash of a young male at the wheel and a blonde in the passenger seat leaning forward to light her cigarette. Windows down, 'cause that model didn't come with A/C. Good stuff. Rich with memory. What’s that line that came to my mind? "Remember me. I've laughed, loved, and lived too."

Anyway, it got me to thinking of all the teenage drivers that had powered that particular car over the ridge and peeled down the next length of road. Of all the couples that had filled that car's cabin space with the chatter of being young. I've only got room for so many words, and maybe I'm stretching to make an image fit something, but I think the maritime law is interesting in the ways that driving that car isn't. Each fact pattern I run up against is fairly unique. Each event, each problem, each conflict presents it's own singularly individual set of circumstances. That is, I'm not pushing the same four wheels that someone else has whipped along the same broken lines. The problems that my clients bring to the table are markedly personal. I'm not driving somebody else's car, I'm riding with someone down a unique stretch of highway in a uniquely homebuilt fact pattern. I'd say the good ones keep that in mind.

Underway and making way, and, yea, I liked that car a whole bunch.

--- JKF

Sweet Mother Mary...

Mon, 28 Jun 2010 17:09:00 GMT

...that last blog entry was pathetically poor. No mistaking me for Byron, huh? Soldiering on . . .

Back in 2006, there was big tug named the "Valour" that foundered and sank. It was a real mess of an event with gorilla seas, gale force winds, and a couple of deaths. I just read the U.S. Coast Guard report (available online) and the fact narrative gave me that churning sensation when you know something bad is unfolding; that heavy transom slipping too fast toward the cement pier feeling. Even the most hardened of you, won't be able to read the damn thing without wincing at the hopelessness of the circumstances. Like how all these things seem to unravel, the problems just seem to keep piling on top of each other. A list to port, ballasting gone awry, a fall, broken legs, man overboard, an overrunning barge . . . . Sweet Mother Mary! The clinical and stair-step description of events based on the surviving crewmember interviews is awesomely terrifying. Give it a read and see what you make of it. (Do you agree with the Coast Guard's enforcement recommendations against certain surviving crewmembers?) Let me set the reading stage . . . it's January, around 11:00 p.m. at night off the coast of North Carolina with forty to fifty mile an hour winds gusting to seventy and 15-20 foot seas . . . .

Give your own salute to the crew that didn't make it. This Blog entry's mine.

Underway and making way.

--- JKF

Are You Guilty of This?

Fri, 18 Jun 2010 19:35:00 GMT

I was painting my boat deck one wet summer day
While to my left, a portly boat owner wrestled a paint tray
I watched the old sod, wash the paint off his hand,
And then stand, straighten and twist his boat stand!

He grunted and groaned and turned the catch
The old boat stand shuddered and then came free
It seemed he wanted to paint that hard-to-reach patch
But, man, didn't he see how silly that move could be?

Why that boat could slip, turn and fall
And what's worse is his storage contract said; "no"
Do not move boat stands, it read, after the haul
And since he was told not to, at trial it'd be a blow.

That silly old sod, got away with his move
Me, I'm still painting away
But I'll say it'd behoove
To leave patches estray.

Underway and making way mainly on the Bay.

--- JKF

To Hades and Back

Fri, 04 Jun 2010 17:46:00 GMT

I remember nudging throttles forward with my knuckle-back, tapping each into some kind of synchronicity, and now I'm about to up the revolutions on this blog. Let me play provocateur . . . didn't this Country sell out the Gulf's beauty years ago? I mean we've got thousands of rigs shouldering up to environments described as "pristine" and "irreplaceable". Me? I call that something's gonna happen, we're just not sure when.

I'm leveling collective criticism. I'm not singling out the oil and gas industry's hardhats, it's as honest a work as anything else anyone does. Look, you don't need to be wearing thick wool socks and sandals to appreciate that the American majority hasn't done squat to conserve. And this so-called alternative energy the media and marketers tout reminds me of some high-end science fair projects. A car that'll get you to the next county on batteries? A windmill here and there? Bio-fuel? Come on, let's be honest, we haven't given a hoot about anything but cheap goods and cheaper fuel, and, in my opinion, we ante-upped the Gulf Coast for cheap fuel everything else be damned.

So now we've gone and punctured Hades. ("The devil went down to Georgia the Gulf Coast, he was looking for a soul to steal."). A nether world pierced and spewing the fermented richness of a million eons ago. If you make a pact with Devil, well maybe you shouldn't be wincing and whining come pay day. To my mind, we curse our trade-off, we try hard to collect money damages, and we get on with realizing that we should bloody well start paying attention to our future decisions. They seem to have consequences, huh?

I'm not underway and I'm not making way. I'm just angry.

--- JKF

Navigating Around Change

Wed, 26 May 2010 17:36:00 GMT

I don’t like change. Let’s get that right out in front. So maybe it’s for that reason I spend a lot of time looking around in search of the kind of marine vendors I remember from years ago. You know what I mean, the couple that designs and installs boat canvas themselves, or that fellow who can weld like nobody’s business, or the marine electronics repair store that rummages up an adapter where no one else could.

You see, in my book, boating is not about the exercise of making way across the water. It’s about the preparations and individual effort associated with getting out there. Any idiot can sit behind a schooner wheel; it takes a true waterman to assemble all the pieces necessary to getting underway.

I remember in Rhode Island past there was a boat supply shop floored in creaking broad pine, organized with old shelving crooked with inventory, and staffed by eclectically knowledgeable folks. There were no uniforms and the staff wasn’t necessarily friendly. They knew their business though, and they took a kind of methamphetamine-charged interest in solving whatever riddle you might push across the counter. A mere twisted portion of rusted bolt lacking any semblance to the original casting was quickly associated with a particular brand, a size, style and – voila – a replacement was produced. You see, for those folks, what I remember is a pride in what they did and how they were perceived. I don’t see that much anymore. Nowadays I troll along vast aisles trying to find replacement bolts myself, I speak to employees who might as well be selling me a cup of coffee, and for sweet’s sake, some places make me check my purchases out myself!

So you go on and buy from the big box stores with the clean lines and overhead lighting. Me? I’ll stick to rummaging around, dusting off and cobbling together. I never did like change.

Underway and making way.

--- JKF

Despair

Tue, 18 May 2010 19:46:00 GMT

There are thirty islands in Narragansett Bay, and Despair Island is the smallest. After having claimed two lives this past weekend and, as these things tend to do, no doubt upending a dozen others, it's also the most aptly named. I don't know much about the facts of that incident aside from what's on the tube, but I know what it's like to run into a ledge at night. Too many years ago, I was coming back from Newport and foolishly looped around the north end of Rose Island on a low tide. Wide up on a plane, I walloped a ledge and sheered the very bottom of the outboard's lower unit off. Humbled and rattled, I idled my way home. I was fortunate that evening.

The Navigational Rules for International and Inland waters require, and I paraphrase, a speed appropriate for the circumstances. How many times have you seen a powerboat blasting its way down the Bay on a foggy day? Alright, I'll volunteer, a fair bit. And sailboats don't get off easy here either. I've seen sailboats zipping along with a crowd aboard, but no one looking under the jib or over the rail. That's just as dangerous and violates the Navigational Rules regarding the maintenance of a proper look-out.

We're all about to lug children, spouses, beer and sandwiches aboard and head out onto the Bay. It'll be good times because, thankfully, the ledger sheet for such things on the Bay is way in the black. All I ask is that when you get underway, you keep a little despair in mind.

--- JKF

Boat Buying Bedevilment

Fri, 07 May 2010 18:27:00 GMT

This is a great time of year. The sun tips forward and starts pouring on some serious rays, and the water starts sparkling and zipping in a way you only get in this hemisphere during the summer months. Alright, enough of my meanderings 'cause for the next few days, I'm trapped up here in an office pushing the maritime law around.

There's an interesting case against a yacht broker that anyone who's fixing to sell or buy a boat should read. Plus, for you Rhode Islanders, there's a bit of a connection because some of the parties are from the Ocean State. Long story short, fellow buys boat in Florida, boat allegedly fails to perform as advertised in allegedly serious ways and a lawsuit follows. Anyway, on April 28, the jury rules in favor of the plaintiff. If you Google "yacht lawsuit florida," you should be able to find some news articles about the matter.

I'll be curious as to what you all think about the result?

Underway and making way, 19 floors up.

--- JKF

Editor's Note: here's an URL to an article about this case in the Miami Herald for John's readers' convenience...

http://www.miamiherald.com/2010/05/04/1611492/angry-buyer-wins-suit-against.html

Hitching and Pitching

Fri, 16 Apr 2010 02:00:00 GMT

I drove 700 miles last night. I pushed a rental car made for suburban grocery runs along old twisted roads with quick turns and shifting grades that hitched the chassis back and forth. The way that car moved might just have made me think of a boat in a seaway if it hadn’t been so late, and I hadn’t been so focused on staying awake.

So, here I am. Pressed shirt and suit, rumpled mind.

Boy, my earlier posts on the marina bill rousted some passionate voices. I’m tired of the topic, but it’s worth me reminding y’all that these are my words, and my personal opinions. I’m grateful for the easel on which to hang them kindly supplied by Safe/Sea, but it’s my stuff and doesn’t have anything to do with what the Safe/Sea folks might be thinking, doing or dreaming.

That’s all I have today. 700 miles will do that no matter what you’re driving.

Underway and making way.

--- JKF