The Salty Barrister

Ok, so some of you are likely dusting off your luggage and getting ready for a cruise somewhere warm. I'm not, but I won't hold it against anybody. At any rate, things can happen aboard a vessel and, who knows, maybe you'll meet your soul mate. Maybe you'll even decide that, level-headedness be damned, you're getting married! So the captain says, "Right. Sure thing." And now, looking at yourself in the mirror some moons past, you wonder: "Was that deal even legal?"

First things first, these are my very general comments on this question. I am not giving legal advice so for Pete's sake, don't rely on anything I'm saying. Treat my comments like a dinner-mat chart at a seafood eatery: fun to look at, but nothing you're going to sail by.

Now, let's talk about one aspect of the issue. Title 46, Section 11301 of the U.S. Code is entitled "Logbook and entry requirements." Among other things, a little ways down the page you learn that a master shall include in the official logbook each marriage on board. So there's this 1929 decision from the New York Court of Appeals in a case called Fisher v. Fisher. The Fishers were sailing aboard the steamship Leviathan from New York to London in October, 1925. Somewhere around forty miles out of New York, the Captain conducts a marriage ceremony, and four years later the court is called on to answer the question whether the Fishers were "lawfully united in marriage." Do you know where I'm going with this?

The Court found the Fishers were married and one of the things it looked to in reaching this decision was that U.S. Code section requiring marriages be logged in the official logbook.

So again, this is just one aspect of the Court's reasoning and it's only one state court of appeals. Who knows how things would turn out in any particular case, especially in these modern times. But there's some food for thought, eh?

Underway and making way (having been happily married ashore.)

-- JKF

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By my count, there's already about sixty reported decisions in 2010 referencing the admiralty law.  That’s a pretty decent haul considering the new year hasn't even motored past the breakwater. It's been a couple of moons since we've visited a maritime law issue, so let's cast off that spring line . . . .

The Eleventh Circuit Court of Appeals recently addressed the recovery of attorneys’ fees in an admiralty litigation.  Now the reason this decision caught my eye was because there's always a great amount of enthusiasm about recovering attorneys’ fees. However, the default position in the United States is called the “American Rule” and requires each party to assume its own fees.  England has, I understand, a different system whereby fees are the responsibility of the losing party. There are good arguments to be made that having each party pay its own attorneys’ fees allows equal access to the judicial system.

In this decision, the underlying dispute was between a general contractor and a sub-contractor on a dredging project. When the defendant sub-contractor prevailed, it turned around and sought its attorneys’ fees pursuant to a state statute. The state statute allowed a prevailing party to recover fees. 

The appellate court began its analysis by finding that substantive maritime law controlled its ruling. Next, the court explained that the law in its circuit regarding attorneys’ fees and maritime disputes is “clear” and that the prevailing party is not entitled to recover its attorneys’ fees as a matter of course. The appellate court noted that a prevailing party in a maritime case is entitled to its attorneys’ fees where (1) a statute governing the claim allows for their recovery, (2) the non-prevailing party acted in bad faith in the course of the litigation, or (3) there is a contract providing for the indemnification of attorneys’ fees.  Finding that none of the exceptions applied, the court turned to the applicability of the state statute. In what I think is an important decision that was needed, the court made clear that the “American Rule” regarding attorneys’ fees was a characteristic feature of substantive maritime law, and as such, the state statute was in direct conflict. That is, the state statute had to give way to the maritime law and the subcontractor couldn't recover its attorneys' fees.

So there you go, a little foray into the choppy waters of the law. I feel better having gotten that out of my system. There's a comment to my last entry on Loran-C deserving a response; it's coming.

Underway and making way.

--- JKF

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My sister is a professor at a university here in the Northeast. She lets me come around once a semester and talk to her oceanography students about maritime law-like things. It's hard to condense maritime law into a fifty-minute or so period; so, what I end up doing is the ol' shotgun approach.

We hit topics that I think might keep a college-aged brain interested. I talk about salvage (peril, voluntariness and success), chatter on about the differences between the territorial sea and the exclusive economic zone (one's your backyard and the other's kind of like the neighborhood), meander around some causes of action available to an injured crewmember (Jones Act and Unseaworthiness), and usually close by addressing whether a captain can actually perform a marriage aboard a vessel (mixed law; statute says no go, but some case law suggests otherwise).

When you're lawyering, a lot of what you say is measured in favor of the advocacy of your position. What I get to do once a semester before a bunch of college kids is a refreshing change. Think of it as the difference between an employer's Christmas party, and having a drink with friends.

Alright, we'll get a couple of more posts in before the Holidays. Speaking of holidays, take a look at Captain Doug's recent blog post on The Daily Breeze? That's the way to do it, friends. Christmas in Staniel Cay, Bahamas. One of these days I plan to do the very same thing, snow and sleighs be damned!

Underway and making way.

--- JKF

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So last night, I hosted Captain Skip Strong at our Newport, RI office. There's not many folks who can hold an audience for nearly an hour and half, but he did so with ease. I suspect it's a good sea story delivered by a great storyteller that did the trick. Many thanks to those that joined us and for those that didn't or couldn't, keep a look out for my announcement of the Spring speaker who brings an equally compelling narrative of high seas adventure.

So Skip's tale is about the salvage of NASA's $50 Million dollar liquid fuel cell back in the mid-nineties. He was the captain of a single-skin tanker that came to the aid of a tug towing a barge on which the fuel cell was loaded. Navigating in shallow water off the Atlantic coast of Florida, Skip and his crew managed to hook up and tow the tug and barge. Parted lines, twenty-foot seas and the unavailability of outside assistance makes it pretty easy to envision the harrowing scenario. At any rate, he wrote a book about the event called "In Peril" and it's the kind of read that'll keep you up far past your bedtime.

I'll get back to scribbling some more entries shortly, but Skip and his book were worth a mention.

Underway and making way.

--- JKF

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I'm not sure what a Tweet is all about. Don't get the wrong idea, I'm LinkedIn, I e-mail up a storm, and my web "presence" is decent. It's just that the idea of a steady stream of observations seems fatuous somehow. I guess thinking others want to know your randomness presumes something I don't like. For the now, I'll leave the Tweeting to the Hollywood crowd and bumble along, but in case things change I've had a go at a practice Tweet below. (For those non-Tweeters, it's short because you're only allowed 140 characters in each Tweet.)

Thx 4 cmg abrd.Jst rd nw law in NY.Ownr/optr plsr bts <21' incldg rwbts kyks canus only allow bt op if all abrd wearing PFD b/t 11/1 - 5/1.

Boy, the English language is going to die under this program, huh?

Underway and making way.

--- JKF

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I don’t know where time goes these days. If life was an old hull hanging in the Travelift straps, time would be pouring out of the seams and smattering all over the ground. Point being, with time passing by so fast, you try and grab those little moments to store away another good memory.

One of those little moments might be a boat charter while on holiday. You know the deal. Fourth day into a vacation and you're just beginning to realize there's a life outside of the daily grind. Tiring of the beach, you grab a family member or two and rent a boat to poke around the shoreline. So here's where this blog spots an issue for you. Those boat rental contracts with the age-old presentation on yellow paper can have some pretty scary terms and conditions. I'd say a prudent boater probably scoots the children outside and takes a moment to read that fine print. I'd say a prudent boater probably takes a few photographs of the boat before getting underway and maybe even checks the inventory aboard to make sure the boat's carrying what it's supposed to carry. All and all, taking the time to understand what's expected of you before you get underway makes good sense.

I keep parroting this, but there's no legal advice being given here. You do what you want, but at least be aware of the issue being spotted. Because, you know, for all time's fleet footedness, it sure can drag when you're dealing with something crappy like a claim for damage to a rental boat you're damn sure you didn't cause.

Underway and making way.

--- JKF

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What happens when you write a cliff-hanger? You get comments likening your efforts to a soap opera. Well, sir, I challenge you to try and wring something interesting from this salt-cured subject that is the maritime law! Tough stuff. Enough though, let's look at what the Second Circuit just did . . .

Like any good soap opera, the plot requires a background story and, in this case, the New York financial world and something called an Electronic Funds Transfer fit the bill. Apparently, a very large percentage of the world's EFT's flow through New York so, say, you want to move money by wire transfer from somewhere foreign to somewhere even more foreign, that EFT's voyage may take it through New York.

Now, in the Supplemental Rules for Admiralty and Maritime Procedure, there is the infamous Rule B which allows for the pre-judgment (meaning before there is an outcome in the case) attachment and seizure of assets provided that the owner of the asset you intend to attach does not have a presence in the district where the asset is located. So let's say there's an arbitration in London against a charterer and let's say there's concern that a potential judgment against the charterer will be uncollectible because the charterer will simply fold up shop. What to do?

Voila, please welcome on stage, Rule B! You see, London counsel calls over to New York counsel and says: "Look here, chap. What we need is for you to seize a charterer's asset with that splendid Rule B thing you boys get to use." So, New York counsel gets an Order of Attachment from the Court, and trots it over to various banks for which charterer is know to use and . . .

Son of a gun, charterer unknowingly sends an EFT to its vendor in, say, Singapore and while en route it passes through New York and -- bingo -- the order of attachment grabs the EFT, bank rings New York counsel and says they're holding funds and charterer is scratching its head wondering what the hell just happened.

This was an increasingly popular legal avenue. Imagine in your mind's eye, the soap opera town with everybody merrily filing Rule B actions under blue skies and with plastic smiles. The camera angle changes to an interior view, doorbell chimes, and a smartly dressed maritime attorney, swings open his law firm's door. And who barges in? The Second Circuit, shoving the attorney aside and shouting: "We got it all wrong. You can't file these Rule B attachments. They're clogging up commerce. They're devaluing the dollar. No more, man! No more."

What you have here gives you the flavor of what the Second Circuit did. You can find the decision online (which is very readable and fairly interesting) if you search for its case name being Shipping Corp. of India v. Jaldhi, et al. More after the commercial break . . .

Underway and making way.

--- JKF

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