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The Salty Barrister
Experienced admiralty attorney John Fulweiler shares some insights into the "Law of the Sea". Capt. Fulweiler grew up as a RI Boater, and spent several of his collegiate summers as a Safe/Sea Captain.
To Hades and Back
John Fulweiler - Friday, June 04, 2010
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.
Short, sweet (not so) and right on point. Thanks John
Anonymous commented on 28-Jun-2010 08:55 AM
wow. nicely stated. i'm angry too.
Pulling 7487 Into a Slip
John Fulweiler - Friday, April 09, 2010
Many thanks for the comments on my last post, good stuff. Both comments make decent points that stress the marina’s reasonable concerns. And you know, there’s a distinction that Anonymous 5:43 p.m. brings up between a marina and a boatyard that’s worthy of pause. I like boatyards and so my gut sides with those slapping paint on hulls, slinging resin and getting dirty, but they’re likely plenty of folks who understand and appreciate marinas as being something different.
But back to the rub. Remember, Bill 7487, as I read it, speaks about vessels in “marina slips” and so I don’t think land-based concerns involving ladders and noise and dirt are particularly relevant to the discussion. That is, I don't think the Bill is doing anything to prevent a marina from acting as it wishes when it comes to vessels in its yard. And, in my personal opinion based on my understanding, I don't think the Bill “effectively turns private property into a public workspace.” Whatever the case, Anonymous 4:13 p.m. hits the nail on the head by highlighting a resolution to the issue which captures what I think is the Bill's intent being an “in-water” and “out-of-water” distinction. Boats ashore, the marina gets to control access by third-parties; boats in the water, the owner gets to make the call.
One last thought, and having now spent more time than I ever planned looking at this Bill, I think it could be improved. In my personal opinion, I think the Bill should include a specific statement that a marina may impose reasonable restrictions as to timing, hazardous materials, etc. Even though I think marinas have legal remedies for the concerns raised, I think the addition of this language keeps things fair -- and that's what started this whole discussion, right?
How about the rest of you out there? Weigh in, speak up . . . . oh, one more thing, none of this is legal opinion or advice. Who knows the Bill's intent or how a court would interpret the same. Repeat after me, this is a blog, it is only a blog, I will not rely on this blog, no attorney/client relationship is formed, etc., etc.
They’re some tired neurons staggering around my frontal lobe trying to salvage a distant memory of an anecdote about publishing. It went something to the effect that writing was more than just putting words on paper, it was about people reading your words. Well, whatever. Point is, I put words on the screen for consumption and it’s awfully nice to get the occasional comment . . . no matter whether I agree with it or not.
Earlier this week I wrote about a Bill pending before the Rhode Island legislature. The Bill aims to prevent marinas from prohibiting boat owners hiring outside vendors. I got a good comment in response which you can read under the old post. It’s a well written and there’s a sense of earnestness to the whole thing which makes me reply in kind.
The comment argues that a private property owner – like a marina – ought to be able to pick and choose who it wishes to have on its property. I agree with this underlying premise, but it doesn’t change my mind. Let’s start from the beginning. A marina is not a hotel or a restaurant. It’s not simply allowing an owner access to its facility to buy or use a product. A marina leases people physical space to moor/berth a vessel. Its primary product is a parking space and because of that, I believe that any analogy to other industries is distinguishable.
Think of it this way. Allowing marinas to prohibit vendors essentially compels an owner to use the marina’s repair and maintenance services. Oh, I know, free market and all that, but is that defense reasonable when you’re locked into renting a slip for the season? Am I really going to have my boat towed somewhere else for repairs? Probably not.
But listen. Please understand, I’m not advocating anything more than my gut feeling on the matter. I’ve got some good arguments favoring the marinas’ position, too. Hell, like I mentioned in the original post, they’ve got a lot more expenses than Vendor Vic and his panel van. And maybe most importantly – and an unspoken reason that might have me voting the other way – this State needs marinas. Marinas employ folks. They’re lots of temporary jobs at marinas that keep kids busy and help other folks who might be between things. They also preserve trade skills and talent that might otherwise be lost in a whirl of websites and whirligigs. Marinas – particularly the good ones – are a community anchor, are watchdogs over the coastline, and are our last stand between the water’s edge and a line of McMansions and Condos. Oh, come on, you know what I mean.
John, you raise an interesting point that I hadn't considered in my previous comment; that there are actually two competing private property interests here. The marina/yard that owns the real estate, and the boater, who owns his boat. You have sided with the boater in your analysis, arguing that the boater should retain the right to decide who actually visits his property, be they guests or mechanics, otherwise the boater is a hostage of the marina. However, this boat-as-hostage dynamic certainly doesn't come as a surprise to the boater who agreed to that when he signed his lease.
My final thought would be this: if the boat is to be repaired in the water, then the boater has in effect rented that space and he should be allowed to have any tradesmen he wants to attend to the boat.
On the other hand, if the boat is hauled out on the hard, I think the yard has the right to control who works there. Yard work is usually a collaborative effort of highly skilled tradesmen working in coordination through a single manager. Outside vendors don't answer to the yard management, and the conflicting agendas usually end up costing the boater more than he saved by hiring the vendor in the first place. Furthermore, yard work is potentially dangerous and environmentally challenging. The yard should maintain the right to dictate how all the work is done and by who within their fence.
Anonymous commented on 08-Apr-2010 05:34 PM
As a marina owner, I have the following thoughts:
This law would create a wide variety of problems for the marina owner and, ultimately, for the marina guest. At the first level (and as discussed above), the marina owner will be held liable for any environmental discharge/damage caused by the contractor. Taken to its logical extreme, this may mean that the marina owner can not restrict a fuel barge from coming into the marina to supply fuel to a vessel. What happens when that barge runs aground or spills large (or small) quantities of fuel in the process? Similarly, the marina owner will be subject to liability when the contractor's ladder slips and he gets hurt, even though the marina owner had no ability to manage the work being done by the contractor.
This bill assumes that every marina should essentially double as a boat yard - causing danger and disturbance for all other guests at the marina through noise, dirt and safety concerns. Many marinas (including virtually all operated by my company) do not have yards associated with them. We restrict the type of work that is permitted to be done in our marinas in order to protect the environment and protect the safety and security of the other guests. We also do it in order to ensure that our marinas remain quiet and inviting for everyone.
There are plenty of boatyards in the world and RI should not create all of these problems - and effectively turn private property into a public workspace - simply because it may be inconvenient for a yacht owner to take his/her boat to a yard. This is something that should be decided by mutual agreement of the yacht owner and the marina he selects for his boat. If the yacht owner does not want to be at a marina that restricts work, then the boat owner always has the right to dock elsewhere.
More importantly, marina owners are - and should be - required to maintain their facilities well and ensure that their facilities do not harm the environment or endanger the health and safety of visitors and employees. This bill prevents the marina owner from fulfilling this responsibility by forcing the marina owner to allow others - who may not be qualified or careful - to do dangerous and/or dirty work on the property with virtually no regulation. Unfortunately, it will ultimately result in higher prices for slips, more damage to the environment and dirtier/less inviting marinas.
Anonymous commented on 09-Apr-2010 03:31 PM
John, your most recent poster mentions that his company owns a number of marinas. Interestingly, it is a specific group of local marinas (all owned by the same company) that are the reported basis of this proposed legislation.
As a businessman and former customer of these marinas, I would not argue their aversion to liability, In fact, I empathize with their position and can fully understand their desire to take precautions to protect themselves and their investments. I support their decision to require tradesmen to provide proof of insurance, as well as their "stewardship of our environment. However, the last poster fails to address the root of the problem, and instead dances artfully around it citing the "danger and disturbance for all other guests at the marina through noise, dirt, and safety concerns."
First, I would argue that the noise, dirt, etc exists regardless of who is performing the work. I hardly think that a marina hammer produces far fewer decimals that one being wielded by an outside contractor. Boat upkeep is a natural part of every owner's season, and I believe that many, like myself, would argue that without the slap of halyards on a mast and the sound of sandpaper on wood, we would hardly recognize the difference between our afterdecks and our backyard decks. It is precisely these sights, sounds, and smells that have drawn us to boating for many generations.
Second, there are still many local, family owned marinas that allow outside contractors in to provide a service, and still manage to remain open and produce a profit year after year. They do so knowing that to take away this option would inevitably force the owners to pay more for the service, potentially driving them from their boats and the water. I should also mention that in my many years of boating, I have witnessed marina staff perform work they were in no way trained or qualified for. Let us please put aside the fanciful notion that all marina workers are factory trained mechanics or RISD trained bottom painters. Many are simply teenaged workers looking to earn money between semesters in high school and college.
Finally, I'd like to address a point you made in your original post on this matter. Almost every marina I have ever patronized was a community within a community. The staff and customers formed relationships and bonds that made each return year after year. If work needed to be performed, all it took was a quick visit to the office, and one could be assured that the problem would be solved by the following weekend. Work orders were written on a friendly smile and a handshake. The customer was comfortable knowing that the work would be done right, and the bill would be reasonable. The staff performed this work and billed on the premise that a dissatisfied customer this summer was someone else's next summer. Sadly, the increase in marinas owned by companies instead of individuals has caused a shift in this dynamic. Some marinas and their management forget that the supply of new boaters is finite, especially in this economy. Overpriced work performed in a shoddy manner, and contracted by unfriendly "business first" management forces boaters to look elsewhere for their services.
To all those that argue that this is simply a reduction in liability and an increase in environmental awareness, I pose this question: If this isn't about money, why would a marina begrudgingly allow private contractors on its grounds but insist that a 10%-20% fee be assessed to the boater, added to the bill, and paid directly to the marina?
Opining On R.I. House Bill 7487 - Marine Slip Rentals
John Fulweiler - Tuesday, April 06, 2010
What's a blog for, but to voice your opinion, right? So here goes . . . I'm in favor of Rhode Island House Bill 7487. I think it's fair and I'm big on fairness.
As I understand it, the Bill would allow for outside vendors to perform work on your boat while it's docked at your marina's slip. Some marinas, apparently don't allow this access. Of course, a marina is not going to be too jazzed about you electing to have some third-party paint your boat's hull, but that shouldn't prevent you from making such a choice. Most likely if you're hiring an outside vendor it's for one of two reasons: (1) the marina charges too much; or (2) you don't like the marina's work quality. Marinas should remain competitive by addressing the boat owners' concerns, not by prohibiting you from having someone else do the work.
Look, I know marinas probably face economic pressures that "Vendor Vic" and his panel van don't which probably makes this Bill something marinas aren't happy about. But you know what? I remember a day when marinas were more "boatyard" than mega-store. When things are run like a boatyard, there's a sense of community, camaraderie, and common interest. And dollars to quahogs, folks at a boatyard might pay a little more when they feel they're part of something.
From what I can tell, the Bill is still in committee which recommended that the "measure be held for further study." Good grief. What's that old saw about things you don't want to watch being made . . . .
I don't know John....boat yards are private property. Shouldn't they be allowed to control who comes and goes, and who works on their property? Should MacDonald's be forced to let a hotdog vendor set up his cart in their parking lot because they don't offer hotdogs on their menu?
I think this bill is a solution looking for a problem. If the the vendors really saw a way to do out of the water boat work cheaper, they should join together and start a do it yourself boatyard to compete, no? If the customers really wanted to hire anyone, they will eventually flock to the yards that allow that.
Wouldn't that be a free market solution?
Anonymous commented on 09-Apr-2010 01:26 PM
I suggest that you checkout the US Constitution on the natural rights of citizens. Private property owners have both the exclusive right to control access to and through their property and the exclusive right to profit from their property. Good luck forcing me to lay down my weapon and let some freeloader do business on my property. I have numerous functional relationships with responsible subcontractors who are happy to cooperate with reasonable marina policies. Boats are not real estate. Boats are chattel like cars or skateboards. If you want to operate under your own rules, turn the key and take your boat to the subcontractor's facility.
Oh, by the way, I remember a day when marine rescue services engendered a sense of community, camaraderie and common interest.
Stolen Seaweed
John Fulweiler - Tuesday, March 30, 2010
With the temps rising some, those bright blue days of boating are near. So in between your yacht's work-up and while the evenings are still chilly, it's not such a bad idea to scan your state's local boating laws. They're likely easy to find online and kind of interesting.
Interesting, you say? My God Fulweiler, you're asking me to read state statutes? Yes, yes. I know it sounds like the Friday-night bit of a lonely maritime lawyer, but it's seriously helpful and, frankly, not much worse than, say, a guide to 12-Volt electrical systems which I'm having a terrible time getting through.
Trust me. Reading these state statutes is helpful because it primes your noggin with some concepts that you'll likely remember when needed. For instance, a lot of states have statutes addressing the liability of an owner for injury or damage caused by the negligent operation of a vessel whether or not the owner is on the boat. Other statutes speak to speed restrictions in certain local waters, lay out penalties for failing to heed the command of local law enforcement, and sometimes address topics that'll make you chuckle. For instance, in Rhode Island, there's a specific state statute speaking to how only the residents of a certain town -- and no one else -- are allowed to take two vehicle loads of seaweed a day from a certain beach. What's the penalty for violating? Apparently, $10.00 for each and every load "so carried off."
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)
The Brayton Point coal burning power plant in Fall River is amongst the dirtiest polluting power plants in the region. LNG will abate most, if not all of it's emissions. Some experts have suggested it is the culprit for our area's extremely high cancer rates. The ships that carry LNG are safer than the gas barges regularly transported now and contrary to STB's alarmist approach, will only be as large as the NB waters can accommodate. They are newer and built to the most exacting safety tandards. The actual disruption in recreation will far be less intrusive than claims made. The claim that it will disrupt current economic activity is absurd as the contrary is true. Yes, some fisherman and quahoggers won't be able to catch in the immediate area but the jobs the construction of this facility will create far outweighs in terms of area benefits. As an avid recreational boater, I'm willing to endure a minor inconvenience for cleaner, cheaper energy. Before deciding on this important issue, look beyond Save The Bay for unbiased information.
Being Right on Loran-C
John Fulweiler - Sunday, February 28, 2010
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).
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