The Salty Barrister

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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...that last blog entry was pathetically poor. No mistaking me for Byron, huh? Soldiering on . . .

Back in 2006, there was big tug named the "Valour" that foundered and sank. It was a real mess of an event with gorilla seas, gale force winds, and a couple of deaths. I just read the U.S. Coast Guard report (available online) and the fact narrative gave me that churning sensation when you know something bad is unfolding; that heavy transom slipping too fast toward the cement pier feeling. Even the most hardened of you, won't be able to read the damn thing without wincing at the hopelessness of the circumstances. Like how all these things seem to unravel, the problems just seem to keep piling on top of each other. A list to port, ballasting gone awry, a fall, broken legs, man overboard, an overrunning barge . . . . Sweet Mother Mary! The clinical and stair-step description of events based on the surviving crewmember interviews is awesomely terrifying. Give it a read and see what you make of it. (Do you agree with the Coast Guard's enforcement recommendations against certain surviving crewmembers?) Let me set the reading stage . . . it's January, around 11:00 p.m. at night off the coast of North Carolina with forty to fifty mile an hour winds gusting to seventy and 15-20 foot seas . . . .

Give your own salute to the crew that didn't make it. This Blog entry's mine.

Underway and making way.

--- JKF

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I was painting my boat deck one wet summer day
While to my left, a portly boat owner wrestled a paint tray
I watched the old sod, wash the paint off his hand,
And then stand, straighten and twist his boat stand!

He grunted and groaned and turned the catch
The old boat stand shuddered and then came free
It seemed he wanted to paint that hard-to-reach patch
But, man, didn't he see how silly that move could be?

Why that boat could slip, turn and fall
And what's worse is his storage contract said; "no"
Do not move boat stands, it read, after the haul
And since he was told not to, at trial it'd be a blow.

That silly old sod, got away with his move
Me, I'm still painting away
But I'll say it'd behoove
To leave patches estray.

Underway and making way mainly on the Bay.

--- JKF

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There are thirty islands in Narragansett Bay, and Despair Island is the smallest. After having claimed two lives this past weekend and, as these things tend to do, no doubt upending a dozen others, it's also the most aptly named. I don't know much about the facts of that incident aside from what's on the tube, but I know what it's like to run into a ledge at night. Too many years ago, I was coming back from Newport and foolishly looped around the north end of Rose Island on a low tide. Wide up on a plane, I walloped a ledge and sheered the very bottom of the outboard's lower unit off. Humbled and rattled, I idled my way home. I was fortunate that evening.

The Navigational Rules for International and Inland waters require, and I paraphrase, a speed appropriate for the circumstances. How many times have you seen a powerboat blasting its way down the Bay on a foggy day? Alright, I'll volunteer, a fair bit. And sailboats don't get off easy here either. I've seen sailboats zipping along with a crowd aboard, but no one looking under the jib or over the rail. That's just as dangerous and violates the Navigational Rules regarding the maintenance of a proper look-out.

We're all about to lug children, spouses, beer and sandwiches aboard and head out onto the Bay. It'll be good times because, thankfully, the ledger sheet for such things on the Bay is way in the black. All I ask is that when you get underway, you keep a little despair in mind.

--- JKF

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This is a great time of year. The sun tips forward and starts pouring on some serious rays, and the water starts sparkling and zipping in a way you only get in this hemisphere during the summer months. Alright, enough of my meanderings 'cause for the next few days, I'm trapped up here in an office pushing the maritime law around.

There's an interesting case against a yacht broker that anyone who's fixing to sell or buy a boat should read. Plus, for you Rhode Islanders, there's a bit of a connection because some of the parties are from the Ocean State. Long story short, fellow buys boat in Florida, boat allegedly fails to perform as advertised in allegedly serious ways and a lawsuit follows. Anyway, on April 28, the jury rules in favor of the plaintiff. If you Google "yacht lawsuit florida," you should be able to find some news articles about the matter.

I'll be curious as to what you all think about the result?

Underway and making way, 19 floors up.

--- JKF

Editor's Note: here's an URL to an article about this case in the Miami Herald for John's readers' convenience...

http://www.miamiherald.com/2010/05/04/1611492/angry-buyer-wins-suit-against.html

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