The Salty Barrister

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

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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

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...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

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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

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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

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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

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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

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