The Salty Barrister

You might read this blog for its fine writing and clever material, and not have a wit of sense about the sea. You might not be able to swim. Merely reading the word "boat" may invoke a wave of seasickness. Still, a cruise ship holiday could be appealing and I can see you succumbing to the cruise industry's splashy advertisements. Hell, you'll no doubt thoroughly enjoy yourself. (I was once told that the cruise industry has the highest return rate of any leisure-time activity so, if true, there's clearly a rollicking time to be had.)

All of this brings me to my cogent observation of the day. A personal injury claim can be skulking around the corner. I know that sounds dreary, but we all fall prey to twisted ankles, fractures and lacerations. It's the curse of ambulating upright, I suppose. At any rate, remember this, if you should sustain an injury and you intend to make a claim against the cruise line, read your passenger ticket. That neatly printed, likely tri-folded bit of paper sets out the terms and conditions under which you have agreed to sail as a passenger. It likely imposes a one-year time for suit provision, it might require your lawsuit be brought in a specific location, and it may require you give notice of your claim prior to filing lawsuit and within a certain time period. (Remember too, a lot of this jazz will probably apply to any kind of claim, not just those concerning personal injuries.) Listen, the Supreme Court of the United States has upheld enforcement of the terms and conditions of a passenger cruise ticket, so you really have to read it carefully.

Come to think of it, the language of your passenger ticket be it a cruise ship, ferry or even an airplane is almost always going to be important. And yes, as much as I hate to admit it, a damn sight more important than this blog.

Underway and making way.

--- JKF

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You're a boater, right? You know a bow from a stern, a bilge from a scupper, a cleat from . . . you get the idea. But, indulge me, what'd be like if you didn't? If you stepped on your boat, bright eyed and without a wit of knowledge, how the hell would you feel? A bit lost, eh? That's why in a world of increasing intricacy, I continue to sign onto the mantra of well-roundedness and that, friends, means knowing a little about a lot. Enough to get you around is how you might think of it. Conversational knowledge. In that vein, store away these nuggets on the law in the event you find yourself caught up in a maritime maelstrom.

When a maritime lawsuit is filed in federal court, a defendant usually has twenty days by which to respond. You can typically respond with an Answer (responding to Plaintiff's assertions and setting out affirmative defenses), a Motion to Dismiss (seeking to extinguish the lawsuit on the basis of, say, it being barred by the statute of limitations), or some other application to the Court such as a motion seeking additional time to respond or a motion seeking a more definite statement (seeking clarification from Plaintiff as to what it's asserting.)

An admiralty lawsuit that names a vessel as a defendant must be "verified" meaning that the plaintiff (the party bringing the lawsuit) must sign a statement attesting to the truthfulness of the allegations contained therein.

Maritime arbitration is a forum in which you resolve a dispute outside the judicial system. The arbitration process will attempt to resolve issues of fact and law, and the outcome is almost always binding. On the other hand, a maritime mediation is like a settlement conference in that the goal is to reach an amicable resolution rather than resolve issues of fact and law.

A "motion" is an application to a court seeking some kind of relief. Motion papers usually consist of a Notice of Motion, Memorandum of Law, and accompanying witness declarations. An opposing party will have an opportunity to oppose the motion.

Don't ask me whether you'll be sued. From what I've seen, getting a suit filed is a pretty low threshold. The question you should be asking is: "If a lawsuit is filed, who will prevail and what are my claims and defenses?"

Absent a specific contract term or specific law, my bet is that you'll almost never recover your attorneys' fees and costs. If you can demonstrate bad faith (an arguably high standard), a Court sitting in admiralty may award you fees and costs.

Underway and making way.

--- JKF

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Here's what I did. I just checked our case law database to see what the most recent decision in the whole U.S. of A regarding an admiralty issue was about. Near as I can tell, Rodriguez v. Trump Casino decided by United States Magistrate Judge Andrew P. Rodovich on July 29, 2009 is as fresh as it gets.

Catherine Rodriguez was a dealer aboard a gaming boat owned by Trump Casino. While walking through a cafeteria at work, she allegedly fell and injured her ankle. Catherine sought remedies afforded to her as a maritime worker. The Court's opinion deals with a summary judgment motion whereby one party seeks to have the Court rule on an issue based on undisputed facts within the record.

Here, the summary judgment motion was seeking to dismiss Catherine's Jones Act claim, but it didn't work. (Ahh, the good 'ol Jones Act. See my June 2 and June 7 posts for a refresher on its workings.) The Court found that genuine issues of material fact existed precluding summary judgment. Practically speaking, this means that Catherine likely gets to put her case before the jury, but it doesn't mean she'll ultimately prevail.

In addition, the Magistrate Judge's opinion needs to be accepted by the District Judge and any party can file objections to the Magistrate Judge's opinion within ten days. What I'll do is keep an eye on Catherine's case and give you an update if I learn anything new.

Underway and making way.

--- JKF

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You don't need to be a maritime lawyer to have reason to decipher nautical acronyms. And for God's sake, they're a lot of them. Buying a vessel or looking for dock space and you're going to talk about LOA or LWL and if it's a CFV you'll be curious about the GRT. Come to think about it, you'll also want to know its MPH and GPH and before you get underway, best tighten the PFD.

A trip south will take you through the ICW and, sweet Jesus, you'll need an MSD or you'll be picked up for a violation of the CVA. Don't know CELNAV, but you need to run at night which means you'll be awash in the glow of the RADAR. Word is that Congress won't fund LORAN anymore making us reliant on that dangerously fickle GPS. You could always DR, but it doesn't take much to get out of whack and then you'll hit a SNAFU.

Boating in the UV with some bubbly and you might get your BAC high enough to risk a BUI or an OUI and, at any rate, you'll risk an accident and that'll mean filing a BAR. And let me tell, whatever the case you'll likely need an attorney whose probably a member of the MLA and, know what, your friends and neighbors will think you're an SOB.

Uhh? What do they all stand for? Leave me a comment if you can't figure it on Google or Bing, and I'll lend a hand. LOL

Underway and making.

--- JKF

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I have a problem. It's not the kind of intestinal-tightening problem associated with seeing seawater sloshing around your cabin, but it's more of a problem than, say, a clogged sea strainer. Admittedly, it doesn't wake me up, but if I'm up, it'll keep me from sleeping. I talk about the problem, but I limit the discussion to immediate family. My wife? She can live with the problem, but it's an everyday thing now. The Internet, fliers on shop windows, and marinas are pretty much where I try to find a cure. Yup, it's a nautical diagnosis with a boat purchase being the prescription.

Look, half of you are hell'uva lot more practical than me. You'll go kick a few hulls, pencil out the numbers and buy a damn boat. Maybe I've been in the law business too long, because I can't seem to close the deal. There's a lot to consider. If it's new, what kind of reputation does the manufacturer have? Hell, my downstream remedies could be limited by the warranty so I'll need to take a look that. And then there's the whole place of sale and registry consideration which might impact on the sales tax.

Used is good too, but where do you start? You'll need a pre-purchase survey, and that'll mean finding a surveyor. I can try and find somebody through the National Association of Marine Surveyors or the Association of Certified Marine Surveyors. Still, surveyors aren't offering any kind of warranty and there's an awful lot of conditional-type language in their reports. I should probably ask to see a copy of any surveys the seller might have to compare it against my survey. And a used boat means I should speak to the marina where she's kept and see whether their mechanics did any work, or, whether this was a handyman's project which might be a warning of future maintenance issues. And, what about hidden liens? Maritime liens don't need to be registered and so that could be an issue. If it's documented, I could make a request for the Abstract of Title with the National Vessel Documentation Center which might help to identify any outstanding liens against the vessel. And, Christmas, new or used, I've got to worry the whole insurance bit. Rates, coverage, warranties, lay-up periods; that stuff gets complicated.

I don't know if I'll ever find a curative elixir, but I do know one thing. At some point, I'm going to get a boat, point the bow toward an empty horizon and enjoy the ride. Hopefully, it'll be a boat I buy myself, but the more I think about it, a nice charter may work just fine.

Underway and making way.

--- JKF

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I'm landlocked today. No smell of the sea, no freshening breeze, nor rattle of halyards. Still, I have a big sky and if I keep my head tilted just right, it's kind of like . . . .

Where are we now, mid-summer or thereabouts, right? So like any mid-something, it can be a time where basic familiarity begins to feel like lifelong experience and sloppiness weeps through your seems. Maybe you decide not to go back to the car to get another life jacket for the unexpected guest. Or, maybe, you justify those three extra beers with the self-assurance of your superior boat-handling skills. Maybe still, you throw a mental lather of optimism around in lieu of actually undertaking the preventative maintenance your boat needs.

The problem with these scenarios is that they can intersect in an ugly way with the maritime law. While beers and boats have an admitted natural affinity, boating while intoxicated is serious business. Aside from a rash of state laws (and a flotilla of local law enforcement driving spiffy boats likely paid for from the Homeland Defense till), you also have the federal law. The federales make it clear that operating a recreational or commercial boat while intoxicated is prohibited. The U.S. Coast Guard's regulations sets federal standards to prosecute violators based on behavioral signs or blood alcohol concentration. (And arguably, "operating" doesn't have to mean steering because the regulations states that an individual is operating a vessel when "the individual has an essential role in the operation of a vessel underway, including but not limited to navigating or controlling the vessel's propulsion system.") And that missing life jacket and overlooked maintenance? The U.S. Coast Guard has the authority to terminate a recreational vessel's voyage when it's operated with insufficient lifesaving or firefighting equipment, or in an overloaded or other unsafe condition. (Go on, take a look yourself at 46 U.S.C. § 4308 entitled "Termination of Unsafe Operation.")

So there you are. A literary rap on the knuckles to make you sit up in your Captain's chair and recognize that sloppy boating has consequences. What's that? Ok, so maybe it is a little bah-humbug, but that's how I get when I can't smell the salt water.

Underway and making way.

--- JKF

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We had to hove-to for engine repairs, kind of. I've been battling a case of bronchitis that left me disinclined to write. At any rate, we're underway and making way now.

I picked up a book the other day and it was about one-hundred things "they" don't want you to know about everyday life. I'm not sure who the "they" are, but it was mildly interesting with random facts about government and society. I think the concept of that book is something that resonates in this blog (without the conspiratorial element of the "they") which aims to convey interesting flotsam and jetsam pertaining to United States maritime law. To that end, I bring your attention to a pending Congressional bill.

The bill (introduced on June 29, 2009) is entitled the "United States Mariner and Vessel Protection Act of 2009." The bill's stated purpose is "to assist in the defense of United States-flag vessels against piracy and to ensure the traditional right of self-defense of those vessels against piracy." The gist of the bill is essentially a limitation of liability and the first group protected are the "owners, operators and masters" who would be protected from civil lawsuits arising out of force authorized under the regulations. Moreover, "vessel" is defined as a vessel for which a certificate of inspection has been issued and is operating in "high risk" waters. As far as I can tell, there's been no vote and the bill is currently pending before the Subcommittee on Border, Maritime, and Global Counterterrorism. The bill is identified as HR 2984 IH for those who want to read its text.

Underway and making way.

--- JKF

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