The Salty Barrister

Losers weepers, finders keepers.  That's the adage we all know, right?  Well, the Kingdom of Spain lost a ship of silver and gold coins to British gunboats back around 1804.  A few years ago, an industrious treasure hunter found the lost wreck, recovered a lot of the booty and then ended up in a tussle with the Spanish government.

So the case is pending in the federal court in Florida where the Kingdom of Spain argues that the United States courts have no jurisdiction under the Foreign Sovereign Immunities Act.  The issue is briefed and then referred by the district judge to the magistrate judge for a recommendation.  What's the magistrate do . . . decides Spain is right and recommends the case be dismissed.

I read the decision.  It's well written and if it captures the presentations correctly, then the salvor may not have had much of an argument.  The gist of the Court's decision is that Spain never gave up its ownership rights to the sunken warship, and that it possesses a sovereign interest in preserving the wreck and its contents.

Why was the case pending in Florida, you ask?  The salvor brought some of the booty into the jurisdiction of the Middle District of Florida (Tampa area) and commenced an in rem action.  Under the law of finds, the Salvor sought possessory rights and ownership over what it had recovered as well as the wreck's remains.

It's an interesting case and if you want to read the full decision, let me know.  I'll keep an eye on the docket and report back on whether the district judge adopts the magistrate's recommendation.  (FYI, I'm voting it's adopted hook, line and sinker.)

Underway and making way.

--- JKF

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"Was that you? That last blog entry. It wasn't too tight, you know? The way it read, I felt like I was in a classroom."

"Yea. That was me. Maybe I hadn't had my coffee. Still, it's maritime law and that stuff is hard to make sexy. It may be all about the water, but it's still pretty dry."

"Umm-mm. Your other entries were ok. I liked them. That last one though, crap."

"Ok. Gotcha. Anything else on your mind?"

"Nope. Just that last crappy blog entry. Oh, and this kid who fell on the deck of my sport fish. He busted his ankle up good and now he's got some attorney sending me letters 'bout the Jones Act. I'm gonna do the right thing, you know. I just don't need an attorney crowding me. It's disrespectful. Give a man a chance to do right is what I say."

"How long did the kid work for you?"

"Didn't work for me. We paid him through my in-law's company that owned the boat. I called it 'my' boat, but it was my in-laws. I don't know, 'bout a year or so. He was a gopher. Get that, do this. That kind of stuff. He kept the boat going alright, though."

"Ok, well the Jones Act is all about seeking a remedy against an employer. If the attorney is shooting you letters in your individual capacity and you weren't the kid's employer, maybe he's got himself sideways and doesn't know what he's doing. Still, it sounds like the kid would likely qualify as a Jones Act seaman because he's contributing to the function of the vessel and he's been doing so for about a year."

"There we go. Wasn't my fault anyways. Kid was drinking with his buddies and missed the step getting off the boat."

"You see, these cases are so fact driven. That fact right there is going to be important because they're cases out there which have found against a crewmember due to his intoxication."

"So how do we play this? Maybe I get a witness or two on the intoxication angle?"

"That's a start. When did this happen."

"Hell, I can barely remember. It has to be three or four years ago, something like that."

"Well, there's another potential defense to keep in mind. Jones Act claims must generally be brought within three years of the date of the incident."

"Sounds like we can beat this claim, huh?"

"We'll see. Remember one other thing, though. The burden of proof in Jones Act claims is not that stringent. In other words, typically in a Jones Act case, the negligence is deemed the legal cause of the injury if it played any part in causing the injury."

"Good to know. Thanks, man. I'll be in touch."

Underway and making way.

--- JKF

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Alright, settle down. I know you've been waiting to learn all about the Jones Act, but we don't offer that kind of information. We're like a chart in a brochure that gives you some orientation, points out a few prominent features and makes you want to buy the NOAA Chart. Still, that doesn't mean we can't give you some walking around knowledge . . .

First off, remember that the maritime law generally affords special or different protections to crew members. For instance, the Jones Act gives seamen the right to sue for monetary damages arising from personal injuries caused by an employer. The Jones Act was adopted in 1920 and prior to that date a crewmember could only recover against an employer if it could be shown the vessel was unseaworthy.

Now, you're no doubt wondering, how does the Jones Act define "seaman" and my response is that Congress left for lunch during that portion of legislative activity because it's undefined. Yup, case law has been left to navigate these narrows leaving, as you can well imagine, a rich history.

In short, whether or not you qualify as a seaman is a fact-driven inquiry which focuses on the circumstances of your employment. Contribution to the function of a vessel in navigation that is both substantial in terms of duration and nature is the typical focus of any examining court. Duration of employment and the nature of the employee's activities are prime considerations.

Seaman status is not a snapshot kind of thing. In other words, the relationship is viewed from a more long-term perspective such that the fellow who's aboard for the afternoon to fix the electronics is not likely to obtain Jones Act status and, vice-versa, the seaman injured ashore is not likely to lose his/her status.

Next up . . . we talk about the Jones Act and recreational boating.

Underway and making way.

--- JKF

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I'm in the midst of an office move -- same building, different floor.  Still, that's got me shuttling around like a spider crab fleeing a seagull! At any rate, we'll be back to jawing out some maritime issues in a day or so. Next up is the Jones Act. What is it, and does it apply to that tactician fellow you pay in your never-ending quest to win the Club's Wednesday night racing series? Good stuff.

Underway and making way (kind of).

--- JKF

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Happy Memorial Day!  

This holiday ranks high on my list.  For the Northern Hemisphere, this day signals the official start of the Summer season.  Depending on your boating enthusiasm, your boat might be in the water and the first lick of spray curling over the bow.  I'm going to keep this short because you shouldn't be looking at a computer screen on a day like this . . . boat or not, wander down to the coastline and soak in those sun-dappled waters, eat a cheeseburger, bury a beer or two.

And because I can't resist, one maritime law comment.  Some of you may be feeling particularly patriotic today.  Maybe the high-pitched shouts of enthusiasm from your child will have you steering close to a warship which makes it important you remember that, typically, a boat is prohibited from approaching within 100 yards of a naval vessel.  Violate a "Naval Protection Zone" and there's some serious consequences including jail time and six-figure fines!

Underway and making way.

--- JKF

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I had my feet on a cooler, and something advertised as "frost brewed" in my hand. It was a Saturday afternoon and the five of us were sitting on the dock, talking nonsense and critiquing the boats pulling down the channel to one of the three marinas to our south. It was a Hatteras that got us on our feet. He'd cracked off a plane, but with bow high and a wake you could've surfed, powered down the channel. We waved and hooted at him to slow up, but he wasn't having it.

It was Billy's boat that got the worst of it with impact damage to the bow where the wake had driven it into the dock. It was fixable, but it'd be a week-long repair and a couple of thousand bucks. Billy wasn't too happy, but he settled down when I explained to him that the maritime law was on his side.

You see, that wake that rolls off the back of your boat and rushes away is generally your responsibility. In other words, when your wake causes damage, it's quite possible that you're going to be on the hook because a passing vessel typically owes a duty of reasonable care to appreciate the reasonable effect of its wake. So Billy took some pictures, wrote down the names of some characters who'd seen the event (aside from us), and filed it away as next week's project.

Later on, one of us got talking about how the choices you make in life have consequences. That's when Billy chimed up. He's right, I guess, that little maxim does get visibly manifested when a boat's wake chases its way to shore.

Underway and making way.

--- JKF

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Admiralty law is a stretch of water with strange eddies, unexpected shallows, and an unforgiving coastline.  You could write a lengthy something about the subject's oddities, but I'm in a practical mindset this Sunday evening.

Ok, so you're at the counter of some marine-type vendor be it a marina, or an outboard repair shop. Your pen is poised above the signature line of a document that the friendly-fellow across from you just twisted around and pushed in your direction. What do you do?

Read the terms and conditions. Taking the time do so makes sense when dealing with maritime issues because under certain circumstances, admiralty law will allow negligence to be waived. If you read language that worries you, flip out your cell phone and speak to your Admiralty attorney.

Sure, it'll take you a little longer, but reading a chart takes a little longer too and both exercises might prevent you from running into troubled waters.

Underway and making way.

--- JKF

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