The Salty Barrister

I was out and about on the Bay this past weekend. At a local marina, I saw a boat laden with blurry eyes and ruddy cheeks. I could tell from the pitch and cackle that there’d been some festive making and good for them, I say. That is, as long as they stay parked at the dock and off the road.

This isn’t some public service announcement, so don’t read these words like I’m preaching to you, because I’m not. Instead think of this blog entry as nothing more than a lowly sign spivened with rust and tacked poorly and lopsided to a piling.

Operating a boat while intoxicated is a crime and it’s a crime because while liquor may give you muscles and goggles, it doesn’t give you judgment. It’ll have you throttling up in darkened waters and throwing a wake in calm. Moreover, my sense is that more of us are using these common waters and low-lying kayaks, zippy jet skis and those odd-looking paddle boards are all over the place. Liquor doesn’t make navigating much less threading your way through good water any easier.

While each state’s laws will vary, Rhode Island’s boating while intoxicated law appears somewhat similar to what you find on its highways. Get nicked with a blood alcohol content that exceeds .08% and you’ve got a big problem. Or put it this way, get nicked with something over .08% and your friendly admiralty attorney will be joining you for the weekend’s festivities!

You know I’m not a fan of boating laws. I don’t want to be told to wear a PFD or get a license or affix a sticker, but with 400 miles of coastline and its share of yahoos, these liquor laws make sense. I mean, even the most hardened of you would have to agree that a liquored-up yahoo with a wide open throttle is a lot different than a liquored-up yahoo without a lifejacket.

Underway and making way, and a belated Happy Fourth of July.

--- JKF

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I could slide in here with some mildly curious bit about the maritime law and ignore the fact that I've been remiss in not regularly posting to this blog. But if I did that, it'd leave me with that gnawing feeling of having ignored something that needs attention like when you're on the boat and you know the fuel filters could use a change and that stuffing box is weeping too much. You get the idea. So let me just take a few questions and get this over with so we can move on.

Where've you been, bro? I've been running around. I left my former law firm in New York to start my own maritime law practice. You can take a look at what we're doing at www.fulweilerlaw.com.

Oh, yea. Where's your office? My principal office is in Quonset Point, RI and I continue to maintain practices in Manhattan and in Fort Lauderdale, FL. I pretty much litigate up and down the East and Gulf Coasts.

So you've moved to Rhode Island? Yup. This is where I'm originally from and so it was a natural evolution. Plus, I have big expectations for Quonset and I wanted to be on the front lines, so to speak.

Quick legal question, okay? If my friend hit a navigation buoy does he have to report that? There's a regulation on this issue which you can find at 46 C.F.R. § 4.05-20. My read is that your friend will need to report the incident to the nearest Officer in Charge, Marine Inspection Office.

Underway and making way.

--- JKF

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Buying a policy of marine insurance is about hedging against risk. You're paying some money up front to limit the possibility of a downstream event that may or may not occur. The boat might never sink, a guest might never fall overboard and you might never strike another vessel, but that burble of potential risk is enough of a concern to justify obtaining insurance. And that's a good bet until your insurer declines a claim.

I'd venture that most boaters navigate a lifetime of waters without having to make a claim or having to rely on an insurance policy to protect them from exposure to a big loss. As a result, when a boater does face this kind of situation there's a certain amount of disbelief. When we pay for something, the thinking usually goes, we sort of expect the contracted-for performance. However, a policy of insurance is a contract and an insurer can sometimes decline coverage. For instance, risks that fall outside the agreed-upon policy language or misrepresentations by the boater at the time of procuring the insurance may be grounds for declining coverage.

What'll usually happen in these circumstances is that sometime after making a claim, you'll get a letter from the insurer or its attorney likely quoting large excerpts from your insurance policy and including a statement as to why the insurer is declining (or reserving its right to decline coverage). When this happens, a prudent mariner promptly calls his maritime attorney and seeks legal advice. These can be tough waters to navigate without a knowledgeable pilot, and you want to make sure that what you do following receipt of such a letter doesn't worsen the situation.

Finally, don't abandon ship should you ever receive a declination letter. There can be alternative arguments as to why coverage exists and, in the case of a reservation letter, an insurer is sometimes simply protecting itself until additional facts can be uncovered.

In the meantime, a Happy Thanksgiving to each of you.

Underway and making way.

--- JKF

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Every business has its own workings. The convenience store owner knows his trade, but he wouldn't know jack about being a literary agent. While this is an admittedly obvious observation, it's helpful to acknowledge the obvious as a means to a better understanding of what we don't know. Marine insurance, for example, is a topic many folks think they have a handle of when, in reality, its many messy contours are often poorly understood.

Of course, a boat owner doesn't need to understand marine insurance chapter and verse, but knowing some things to watch for can really help protect your interests. (It's analogous to the prudent mariner keeping a watchful eye on the weather while still making lively small talk with his guests.)

One gray cloud that requires a boat owner's utmost attention is when a marine insurer declines coverage or reserves its right to subsequently decline coverage. In plain language, this means that your vessel insurer believes it isn't obligated to cover your claim. This could leave you facing the highly unpleasant situation of defending against an uninsured loss. When you receive such a notice from your insurer, it's probably a good idea to promptly retain maritime legal counsel to review the insurance company's position. Remember, insurance policies are simply contracts and while the insurer may have one interpretation, it may not be a particularly strong position. That is, you don't have to accept your insurer's position and you may have traction to argue that coverage, in fact, does exist under the policy language.

Nothing will put you to sleep faster than a dose of marine insurance on a soggy Fall day, but this is one of those topics that's worth having heard something about.

Underway and making way.

--- JKF

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Now we’re into things, huh? You’ve had some Summer happenings, a couple of picnics, a burn and a peel, and that long pull from an iced-down bottle of beer. Good memories, indeed.

The thing is, and I know you’ve shied away from conceding this, but the lawn is burnt and the Bay is starting to have that Fall'ish look around its edges... all of which means that winter storage is around the corner. And that means winter storage contracts. Even though you might have a child tugging at your pant leg, find time to read through the darn thing. No doubt you’ve got a great relationship with your marina, but when the ship hits the fan, things can rise and fall on contract language, so it’s important to understand what you’re reading. Whether it’s a word or a paragraph, if what you’re signing isn’t clear, speak to your admiralty attorney. And another good resource to keep in mind is your insurance broker. It’s a good idea to make sure that what you’re agreeing to is consistent with your insurance coverage.

That’s all I’ve got today. Work is crowding in like a subway car at rush hour and I’ve got to find a way to get some more time on the water. Underway and making way, or, as I used to say, “Standing by, Channel 16.”

--- JKF

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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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