This blog is for fun. There is NO legal opinion offered and NO attorney/client relationship is formed under any circumstances. The comments relayed herein may or may not be accurate. There's no warranty as to accuracy, no warranty as to whether you'll find any of it interesting, no warranty as to anything. If you have a legal issue, contact an attorney and DO NOT RELY on anything stated herein. Again, I'm blogging here, NOT lawyering.
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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.
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."
A great group of sailors sat through my brief towing and salvage lecture this past Saturday at the Newport Yacht Club. Sure, maritime law can get dry, but I kept a nice tempo going and everybody was gracious enough to keep their eyes open! What's that? Yea, there were some good questions.
The take-away (yep, my nod toward pop-culture jargon) was that salvage continues to be misunderstood. A salvage claim is nothing more than a claim for money based on the claimant having saved a vessel and/or its cargo from loss. Broadly speaking, to qualify for a salvage award, the vessel must be in peril (actual or imminent), you can't have had a pre-existing obligation to assist the vessel, and you need success. Sure, salvage rights generally give rise to a maritime lien, but right to ownership of a salvaged vessel? Not usually.
Why all the confusion? In my personal opinion it's due to two factors. First, salvage is old as dirt. Look back thousands of years and you can find some derogation of the concept. Pretty much like what old age does to us, old legal concepts have a lot of baggage, too. Second, we're all so used to the "time and materials" approach to paying for services that the concept of a "reward" get's everybody tacking sideways. Still, in my opinion, the maritime law concept of salvage works, and I challenge you to propose a different remedy. (Full disclosure, I used to be in the salvage industry myself so I like the stuff, but seriously, what other than a "reward" would roust someone from a warm bed in the middle of a gale?)
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.)
Vessel Assist Dana Point commented on 22-Feb-2010 11:33 AM
Almost anybody can marry them. I want to know about granting divorces. If we can marry them, how can we get in on the other end of the transaction!
dd
-Vessel Assist, Wedding and Divorces
Fee-fi-fo-fum
John Fulweiler - Thursday, February 04, 2010
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.
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