The Salty Barrister

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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Things change, right? Steel rusts, wood rots, and opinions weaken. (I think the Germans call it “altersmilder”, meaning the kindness that comes with age.) The point is you can’t disagree with the maxim that the only static thing is change itself.

Some of you might be inclined to reason that legal opinions are unchanging. That seems sort of mechanically acceptable in the sense that once a court rules that, say, a vessel aground on rocks is in peril, it follows that it’ll continue to reach that conclusion in future cases with the same or similar facts. In fact, that concept of precedent is sort of the premise of our entire legal system. We attorneys spend a lot of time rooting out prior legal decisions in an attempt to find an analogous situation so that we can argue in favor of our client because the court ruled in favor of a similarly situated party in the past.

So, I’m leading up to the “denoument” (as the French might say) and that is – and son of a gun – the Second Circuit Court of Appeals changed its mind this Friday afternoon! And it was on a maritime issue. I think the issue is fairly described as a blue-water issue because it typically involves large vessels. But let me tell you, maritime tongues are clucking from New York to London and onto Bahrain and into the setting sun. Depending on where you stand on the issue, there’ll be some smiles, some narrowed eyes of concern and a fair grouping of pursed lips as the change of law is tumbled around upstairs and the newly conceived risks and benefits of the decision are weighed. If you’re wondering what a large contingent of the world’s traders, vessel owners, charterers, vendors and maritime attorneys are thinking about this Friday evening, don’t be ‘cause I’m telling you it’s this decision.

What’s that? Oh, I know, I never got into what it was that they changed their mind about! Sorry if this post feels like that spousal spat where you forget what the hell the dispute was, but the reality is that it’s Friday night . . . . don’t worry, check back and I’ll tell you in the next post.

Underway and making way.

--- JKF

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Alright, hunker down, we're going to talk about punitive damages. I know this topic gets the blood running hot among some of you, but take a couple of breaths and let me unravel things.

The setup is this: a crew member injures his arm and shoulder while aboard a tugboat. The tugboat owner allegedly refuses to pay maintenance and cure, the crew member brings suit seeking punitive damages and the whole thing ends up in the Supreme Court. For the landlubbers among us, maintenance and cure is a vessel owner's general obligation to provide food, lodging ("maintenance") and medical services ("cure") to a crew member injured while serving a vessel.

The issue before the nine justices was whether a refusal to pay maintenance and cure gave rise to a claim for punitive damages. There's a lot of analysis to the ruling, but boiling things down, the Supreme Court first cleared up a split between the circuit courts of appeal and held that punitive damages could be awarded for the willful and wanton disregard of a maintenance and cure obligation. That is, under the right circumstances, a refusal to pay maintenance and cure might allow a crew member to recover punitive damages against a vessel owner.

Not every alleged failure to pay maintenance and cure will trigger an award of punitive damages. Still, our country is enveloped in a health care debate, and maintenance and cure may be the only backstop a maritime worker has when an injury arises making this decision particularly important.

Underway and making way.

--- JKF

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There's a cold curl to the air these days. Even if you didn't know that winter had just gotten off at the bus depot downtown and was making its way to your neighborhood, the light would give it away. Summer's bright and shiny sparkle has fled into the hills. Lay in the grub, get ready to read those boating rags that piled up during the warm climes, and consider the following.

A lot of marine insurance policies have a lay-up period. Typically, this period represents a stretch of time where you agreed that your vessel will be hauled from the water or not in navigation. (Each policy will likely define this period differently, so you'll want to read it carefully.) In New England, this period is sometimes defined as running from November 1 to April 1. Point being, if you're keeping the yacht in longer this year or the press of business has you worrying other issues aside from when you're going to haul-out, take the time to unfold that insurance policy and check on that date.

So there you go, another issue spotted. And, no fear, we'll keep plugging away at these little missives throughout the winter making it important you check back often. I guess, though, a goodbye to Summer is in order. I've held back some, not wanting to admit the inevitable. You were a decent Summer. Not great in the weather department, but damn alright as far as activities and outings. I'd like less rain next time around, and a little more wind when I need it, and a lot less when I don't. Still, you brightened a handful of mornings when it was needed, and you chased down a few fun nights with a cheery copper glow, so you did alright. Stay well, my friend.

Underway and making way.

--- JKF

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The third rendition of the Happy Hour Ammo series presents five "did you know" items touching upon the nitty-gritty of the general maritime law and, of course, conveyed without any guarantee whatsoever as to their accuracy . . . this is for fun folks, right?

• Did you know that a contract to build a vessel is generally not subject to admiralty law?
• Did you know that the Wage Penalty Statutes generally do not apply to yachts or fishing vessels?
• Did you know that a published 1973 admiralty decision was written entirely in rhyme?
• Did you know that federal law prohibits a vessel's master from forcibly leaving a crew member in a foreign port when it is done maliciously and without justifiable cause?
• Did you know that the "Walker Doctrine" a/k/a "Primary Duty Rule" may be used to bar a seaman's right of recovery for an injury arising from a breach of a duty that was the seaman's primary responsibility. Admittedly, it's a rare bird.

Ok, use these nautical nuggets sparingly. What with the cold weather whipping around the northeast I'm hopeful that they'll win you a liquid wager or two that'll warm you up.

PS - That rhyming reference peaked your interest, huh? The decision's citation is Mackensworth v. American Trading Transp. Co., 367 F. Supp. 373 (E.D.P.A. 1973), and you can find it online.

Underway and making way.

--- JKF

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