The Salty Barrister

By my count, there's already about sixty reported decisions in 2010 referencing the admiralty law.  That’s a pretty decent haul considering the new year hasn't even motored past the breakwater. It's been a couple of moons since we've visited a maritime law issue, so let's cast off that spring line . . . .

The Eleventh Circuit Court of Appeals recently addressed the recovery of attorneys’ fees in an admiralty litigation.  Now the reason this decision caught my eye was because there's always a great amount of enthusiasm about recovering attorneys’ fees. However, the default position in the United States is called the “American Rule” and requires each party to assume its own fees.  England has, I understand, a different system whereby fees are the responsibility of the losing party. There are good arguments to be made that having each party pay its own attorneys’ fees allows equal access to the judicial system.

In this decision, the underlying dispute was between a general contractor and a sub-contractor on a dredging project. When the defendant sub-contractor prevailed, it turned around and sought its attorneys’ fees pursuant to a state statute. The state statute allowed a prevailing party to recover fees. 

The appellate court began its analysis by finding that substantive maritime law controlled its ruling. Next, the court explained that the law in its circuit regarding attorneys’ fees and maritime disputes is “clear” and that the prevailing party is not entitled to recover its attorneys’ fees as a matter of course. The appellate court noted that a prevailing party in a maritime case is entitled to its attorneys’ fees where (1) a statute governing the claim allows for their recovery, (2) the non-prevailing party acted in bad faith in the course of the litigation, or (3) there is a contract providing for the indemnification of attorneys’ fees.  Finding that none of the exceptions applied, the court turned to the applicability of the state statute. In what I think is an important decision that was needed, the court made clear that the “American Rule” regarding attorneys’ fees was a characteristic feature of substantive maritime law, and as such, the state statute was in direct conflict. That is, the state statute had to give way to the maritime law and the subcontractor couldn't recover its attorneys' fees.

So there you go, a little foray into the choppy waters of the law. I feel better having gotten that out of my system. There's a comment to my last entry on Loran-C deserving a response; it's coming.

Underway and making way.

--- JKF

So the wind blows grey and wet today. That's not all bad because you need these sessions as a foil to all the shiny bright of summer. You know what I mean. Too much harry and excess, and you forget how good a cold beer tastes, you overlook the wonder of eight cylinders running in counter-balanced harmony, you miss out on your hull carving through that ugly curler . . . you start getting dulled. And life is all too short a tack for that kind of nonsense.

A job will dull you like nothing else. No doubt there. So can a hundred of other things from family crises to business successes and from failures to money troubles. And so, my friends, by way of salty elixir I recommend a dose of boat maintenance. It's quick-acting and there's nothing like it to focus the mind. No, I'm not jesting. I'm a big supporter of the marine trades, but this year pick one boat project and give it a whirl. Pick something tangible that come August, you can lift a hatch, look at and think: "Huh. I did that myself and it looks pretty good." Paint the bilge, rewire an electrical panel, or varnish some brightwork. It's not the project, it's the process of doing the project yourself. Of scraping your knuckles, of sitting in a meeting with a rime of bottom paint around your cuticles, of reminding yourself that boating is not all about turning the key and going.

Sure, this blog entry runs the risk of grounding upon the shoals of self-help. Those are a nasty bit of rock and I'm trying to give them plenty of clearance. But if your ear hears a breaking surf, just read some other post and remember this entry as nothing more than an author's gridiron struggle at keeping life shiny bright.

Underway and making way.

--- JKF

I grew up around folks that tended toward self-sufficiency. A spare something was generally on hand. You didn't come into the dock too hot because rudders and clutches could be ornery. You checked the depth gauge against your plotted position to make sure things looked about the same. You didn't run your fuel tanks down, rely on a radar, or run off your entire battery bank. You get the drill, and that approach has faired me well. So what with the wisdom of my increasing years, I'm damn unhappy about the Loran-C system being unplugged. (http://www.latimes.com/news/nationworld/nation/wire/sns-ap-us-navigation-system-shelved,0,939770.story)

We're all GPS happy, intoxicated by its ease, accuracy and relatively cheap price tag. I get it. The problem with GPS is that it relies on satellites and, look, I'm no engineer but if a satellite works anything like my cell phone, you can probably shut them off with as little as a key stroke. That's the problem. Everyone from the commercial fisherman to the weekend warrior is bombing around the coast on the wings of a GPS signal. Cut that signal and my money says you're going to have big problems. Ferries, harbor patrol units, and, I'd venture, even the Coast Guard might be up a creek. And without Loran-C what's the alternative? Dead reckoning? Maybe like sailors of old, you can pull up your sounding weight to see what kind of sea floor the wax base trapped. (I can assure you that that aged talent of being able to divine one's location from a sample of the sea floor has slipped into history's ether.)

Reports suggest that turning off Loran-C will cost some 256 jobs. The price of keeping Loran-C going is reported to be $36 million in 2010 and $190 million for the next five years. (Serious money to be sure, but let’s not venture down the path of comparing it to the alleged bonuses the financial sector is taking home. And, in case you'd forgotten but by way of perspective, the TARP bailout is in the range of $700 billion!)

Yea, I am angry. These are the easy decisions and we're not getting them right. Tell you what, China is. They have two Loran-C type systems. Makes you wonder what we're thinking, huh? If you have a moment, give your local representative a call or go to http://www.navcen.uscg.gov/LORAN/default.htm and send them a burst of the kind of common sense that landed a thousand ships safely back in the harbor.

Underway and making way (without my Loran-C).

--- JKF

The two weeks that encompass the Christmas and New Year holidays always seem to pass with frightening speed. One moment someone's leaning into your office with holiday wishes, and the next thing, your secretary is cheerily reminding you that your letter has the wrong date: "It's 2010 now, John." So it is.

You say what you want about progress, I like the nautical bubble because things seem to take a little longer to change. And that's a good thing. Take the past decade, for instance. Oh, I know the marketers will sling this and that as heralding "marked" change, but really? The things that count to me seem pretty much unchanged. There's still wooden hulls being pushed along under acres of sail, good looking small craft, harbors that'll hold an anchor, moorings and launch service, floating docks, Saturday races, bags of ice, grills on transom rails, tan lines, sailing lessons, your wake's white curl, a boater's friendly wave, rafting up for the concert, the rumble of twin engines, an open line of ocean, moonlit cruises, high tides, the smell of varnish . . . .

I didn't write a holiday post. I'll let my earlier Thanksgiving post stand for the Season.

Underway and making way.

--- JKF

My sister is a professor at a university here in the Northeast. She lets me come around once a semester and talk to her oceanography students about maritime law-like things. It's hard to condense maritime law into a fifty-minute or so period; so, what I end up doing is the ol' shotgun approach.

We hit topics that I think might keep a college-aged brain interested. I talk about salvage (peril, voluntariness and success), chatter on about the differences between the territorial sea and the exclusive economic zone (one's your backyard and the other's kind of like the neighborhood), meander around some causes of action available to an injured crewmember (Jones Act and Unseaworthiness), and usually close by addressing whether a captain can actually perform a marriage aboard a vessel (mixed law; statute says no go, but some case law suggests otherwise).

When you're lawyering, a lot of what you say is measured in favor of the advocacy of your position. What I get to do once a semester before a bunch of college kids is a refreshing change. Think of it as the difference between an employer's Christmas party, and having a drink with friends.

Alright, we'll get a couple of more posts in before the Holidays. Speaking of holidays, take a look at Captain Doug's recent blog post on The Daily Breeze? That's the way to do it, friends. Christmas in Staniel Cay, Bahamas. One of these days I plan to do the very same thing, snow and sleighs be damned!

Underway and making way.

--- JKF

So last night, I hosted Captain Skip Strong at our Newport, RI office. There's not many folks who can hold an audience for nearly an hour and half, but he did so with ease. I suspect it's a good sea story delivered by a great storyteller that did the trick. Many thanks to those that joined us and for those that didn't or couldn't, keep a look out for my announcement of the Spring speaker who brings an equally compelling narrative of high seas adventure.

So Skip's tale is about the salvage of NASA's $50 Million dollar liquid fuel cell back in the mid-nineties. He was the captain of a single-skin tanker that came to the aid of a tug towing a barge on which the fuel cell was loaded. Navigating in shallow water off the Atlantic coast of Florida, Skip and his crew managed to hook up and tow the tug and barge. Parted lines, twenty-foot seas and the unavailability of outside assistance makes it pretty easy to envision the harrowing scenario. At any rate, he wrote a book about the event called "In Peril" and it's the kind of read that'll keep you up far past your bedtime.

I'll get back to scribbling some more entries shortly, but Skip and his book were worth a mention.

Underway and making way.

--- JKF

If you’re reading this Blog, it’s a fair bet that you’re not lugging water from a well, that you’re not cowering in fear of a local militia, that you have monies sufficient to put food on the table, and that you have a roof overhead. Yes, some of you might be sick or without a job, I know that. Life is not an easy stretch of water, but if you’re reading this blog, I can darn well guarantee that you have plenty more to give thanks for than the majority of this world’s population.

I’m no bleeding heart, but if you consider yourself a “boater,” then life’s been ok to you. Being able to slip across the ocean’s surface on one’s own time and without being driven by the urgency of trying to land a meal, or fleeing a hostile coastline is amazing fortuity. You, my friend, have a lot to give thanks for in that alone.

I was going to try something clever like writing about the number of maritime cases that refer to Thanksgiving (31, if you’re interested), but my aim is not to entertain today. If I may suggest so, get off this damn computer, and go count your blessings.

Underway and making way.

--- JKF