The Salty Barrister

A great group of sailors sat through my brief towing and salvage lecture this past Saturday at the Newport Yacht Club. Sure, maritime law can get dry, but I kept a nice tempo going and everybody was gracious enough to keep their eyes open! What's that? Yea, there were some good questions.

The take-away (yep, my nod toward pop-culture jargon) was that salvage continues to be misunderstood. A salvage claim is nothing more than a claim for money based on the claimant having saved a vessel and/or its cargo from loss. Broadly speaking, to qualify for a salvage award, the vessel must be in peril (actual or imminent), you can't have had a pre-existing obligation to assist the vessel, and you need success. Sure, salvage rights generally give rise to a maritime lien, but right to ownership of a salvaged vessel? Not usually.

Why all the confusion? In my personal opinion it's due to two factors. First, salvage is old as dirt. Look back thousands of years and you can find some derogation of the concept. Pretty much like what old age does to us, old legal concepts have a lot of baggage, too. Second, we're all so used to the "time and materials" approach to paying for services that the concept of a "reward" get's everybody tacking sideways. Still, in my opinion, the maritime law concept of salvage works, and I challenge you to propose a different remedy. (Full disclosure, I used to be in the salvage industry myself so I like the stuff, but seriously, what other than a "reward" would roust someone from a warm bed in the middle of a gale?)

See my WorkBoat Magazine Blog entry for some more Fulweiler flotsam and jetsam on salvage: http://www.workboat.com/blogpost.aspx?id=4294989782

Underway and making way.

-- JKF

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I scrabbled up a hundred miles of tarmac and crunched across a gravel parking lot to hear a revealing discussion about a proposed Liquid Natural Gas terminal to be located in Narragansett Bay, RI. Yup, you heard me right. Some oil folks want to drop a terminal in Mount Hope Bay and sail some massive looking LNG tankers up and down these inland waters. Watch my phrasing here, IN MY PERSONAL OPINION, this is a rotten idea. The talk was given by a fellow from Save-The-Bay and they have additional information on their website: http://www.savebay.org/Page.aspx?pid=1279.

You know, I worry some about these kinds of, IN MY PERSONAL OPINION, wacky proposals. Times are tough and the resolve of the populous is weakened by the sheer effort of living. It's like a boat owner juggling a newborn, a job, extended family commitments, a mortgage, and car payments. Yeah, the boat gets launched, but she's got that creeping unkempt look. You know what I'm talking about, dusty sheer to fiberglass, bleached-out canvas cover, frayed lines, beard of green on the lower unit, etc. There's just too much else stealing the owner's time and next year, well, the owner's heard to say: "Heck! I'll just let her sit this season." And the leaves gather, and the fiberglass splinters, and the bright-work flakes and then she's just an eyesore. A vine wraps up and around a boat stand and a year or two later, in the snap of an Autumn breeze, the stand kicks out and the boat smacks down. The hull's cracked and they cut her up, and pile her into a container.

To be blunt, things and people and relationships take effort. If you think something like this LNG proposal isn't what you want for the Bay, you gotta stand-up and do something. Call Save-The-Bay, call your local legislator, call somebody and voice your opinion. "We all think of the inconvenience of making an effort. We're all going to do the right things a little later on. Soon. But soon slides by so easily." (J.D. MacDonald, Cinnamon Skin, p. 75, John D. MacDonald Publishing, Inc., 1982)

Underway and making way.

--- JKF

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I once was alone on a small boat bobbing up and down an oily sea. I recall the usual suspects being there: chunk of water against hull, clank of something shifting, and the wind's low hiss. There wasn't a shoreline to steer by, and no distant running lights to follow. All I had was a compass, a working engine and a memory of how long I'd been motoring.

I got myself home. Admittedly, no stunning feat. But you see, what it shows in some very small way is that plunking around the ocean's waters is a doable endeavor. With the navigational rudiments in hand, you can pretty much move from port to port without the benefit of electronic circuitry. There's no debating that point.

So let's wrap up this Loran-C debate and, specifically, respond to the comment someone left in response to my January 18, 2010 entry. I'm always grateful for comments, but that comment misses the windward mark. First, it accused the entry's premise of "self-sufficiency" as being somehow contradictory to my challenge that Loran-C should be maintained. Really? You can define self-sufficiency across the spectrum, but I clearly define it as being all about redundancy and about not waiting for someone else to save your transom. When I talked about radar, depth gauges, and battery banks I was conceding a personal reliance on modern-day amenities in achieving "self-sufficiency". So, friend, keeping the only redundant back-up to the GPS alive and kicking fits squarely with how I defined "self-sufficiency." Second, your rhetorical query as to why the United States "should shoulder most of the cost of an aging and redundant system" left me scratching my scalp with a dopey look. Why? 'Cause what in sweet Jesus are we supposed to do when the GPS signal craps out? Or how about when the military pulls it off-line (temporarily, of course) due to the specter of a national security threat? Sure, we can putter back to port with the tried and true, but how's that home heating oil barge going to get tugged around in all manner of weather? How's that fast-ferry with a load of suits going to make its Wall Street run at an average speed in excess of twenty-five knots. The bottom line here is not whether you can make a port, it's about a transportation system that's dependant on a fragile (and easily tampered-with) electronic beacon.

Finally, you dredge up the ol' market loving theory.  Let the market support the Loran-C, you say. God love us, I'm sorely tired of that argument and I've got a novel's worth of rebuttal for blind reliance on market forces. Still, I'll bet we can both agree that one of government's primary functions is to keep us safe. Assuming as much, and assuming that when the GPS stops warbling marine transportation is going to enter a severe and dangerous paradigm shift, I'd say you'll have to agree that Loran-C maintenance should be a government function.

Ok, so I'm standing my mud. Don't take offense, none.

Underway and making way (with a dumbed-out Loran-C).

--- JKF

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Ok, so some of you are likely dusting off your luggage and getting ready for a cruise somewhere warm. I'm not, but I won't hold it against anybody. At any rate, things can happen aboard a vessel and, who knows, maybe you'll meet your soul mate. Maybe you'll even decide that, level-headedness be damned, you're getting married! So the captain says, "Right. Sure thing." And now, looking at yourself in the mirror some moons past, you wonder: "Was that deal even legal?"

First things first, these are my very general comments on this question. I am not giving legal advice so for Pete's sake, don't rely on anything I'm saying. Treat my comments like a dinner-mat chart at a seafood eatery: fun to look at, but nothing you're going to sail by.

Now, let's talk about one aspect of the issue. Title 46, Section 11301 of the U.S. Code is entitled "Logbook and entry requirements." Among other things, a little ways down the page you learn that a master shall include in the official logbook each marriage on board. So there's this 1929 decision from the New York Court of Appeals in a case called Fisher v. Fisher. The Fishers were sailing aboard the steamship Leviathan from New York to London in October, 1925. Somewhere around forty miles out of New York, the Captain conducts a marriage ceremony, and four years later the court is called on to answer the question whether the Fishers were "lawfully united in marriage." Do you know where I'm going with this?

The Court found the Fishers were married and one of the things it looked to in reaching this decision was that U.S. Code section requiring marriages be logged in the official logbook.

So again, this is just one aspect of the Court's reasoning and it's only one state court of appeals. Who knows how things would turn out in any particular case, especially in these modern times. But there's some food for thought, eh?

Underway and making way (having been happily married ashore.)

-- JKF

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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

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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

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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

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