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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.
Sweet Mother Mary...
John Fulweiler - Monday, June 28, 2010
...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.
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.
He be a poet - He don't know it - Oh heck, u know the rest ---
Despair
John Fulweiler - Tuesday, May 18, 2010
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.
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...
Interesting case in that I have always thought that in maritime law each party was somewhat to blame. The question was only what percentage to which each party was at fault...... This article says a Federal Jury ?? I am suprised that the owner/seller was only held 10% accountable. He did know what claims that HMY was making.
Also now that they were found guilty can criminal charges be filed.
Anyone buying a $2,000,000 yacht should be having his own survey done before writing the check.
And why was the Florida surveyor not held more responsible ??? Did he make a proper assesment of the boat and did the buyer (so in love with the boat) not read the survey ?? Or ignore the facts ???
Some questions not answered here. Lets see the survey........
Hitching and Pitching
John Fulweiler - Wednesday, April 21, 2010
I drove 700 miles last night. I pushed a rental car made for suburban grocery runs along old twisted roads with quick turns and shifting grades that hitched the chassis back and forth. The way that car moved might just have made me think of a boat in a seaway if it hadn’t been so late, and I hadn’t been so focused on staying awake.
So, here I am. Pressed shirt and suit, rumpled mind.
Boy, my earlier posts on the marina bill rousted some passionate voices. I’m tired of the topic, but it’s worth me reminding y’all that these are my words, and my personal opinions. I’m grateful for the easel on which to hang them kindly supplied by Safe/Sea, but it’s my stuff and doesn’t have anything to do with what the Safe/Sea folks might be thinking, doing or dreaming.
That’s all I have today. 700 miles will do that no matter what you’re driving.
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?
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