The Salty Barrister

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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Thanks for the recent comment inquiring as to why you'd arrest a vessel. (See "Book that Vessel!", August 20, 2006) Obviously, the answer is because the vessel was behaving badly, maybe lurching around in public smelling of booze, maybe fleeing a crime scene, dealing dope, who knows?

Forgive me. However, the term "arrest" has that flavor, right? You're left with an image of the Marshal swaggering down the dock, cuffs in hand and some center-console tugging madly at its lines. But that's not how it works when a vessel is arrested. Sure, it's detained and can't be moved, but the reason for doing so is usually because of monetary issues. In the maritime law, liens attach to a vessel and, typically, if you want to foreclose on a maritime lien, you arrest the vessel. That is, if you're the holder of a maritime you can generally seek the vessel's arrest in satisfaction of the lien. Say a marina hauled, stored and repaired a vessel. It probably has a lien for necessaries supplied to the vessel, and if the marina isn't paid, it may be able to arrest and seize the vessel. The court would likely require security be posted to release the vessel, and the claim would be adjudicated and the marina, if it prevails, would be paid from the posted security. If no one appears on behalf of the vessel or if no security is posted, the court may allow the marina to sell the vessel and the proceeds would be deposited with the court.

I know, I know. There's other reasons for arresting a vessel. You can arrest a vessel if there is a dispute over ownership or possession. In that case, the Court would usually hold the vessel until it resolved the parties' dispute. And then, of course, a vessel can be arrested and seized on the criminal side, but that's a whole other ball of Oakum.

Underway and making way.

--- JKF

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You know how a wave catches the stern and starts to get you sideways when you were thinking about something else? Or with fog, how there's an occasional moment where the sheer blindness of the stuff catches you off guard. Common to these moments, I think, is the fear of losing control. Being able to orient yourself is the elixir. A sharp turn on the helm, or a quick glance at the radar is usually enough when you're shipboard. What do you do, however, when you're in the midst of a litigation, and you sense the burble of a familiar feeling?

Litigation is a voyage with all the storms and safe harbors you might expect from a sail of any good length. As a party to a litigation, keeping informed as to the status of things is probably the key to not losing control. It's important to understand that like a doctor or accountant, an attorney has many clients and double as many files requiring attention. You (hopefully) only have a single litigation to contend with, so it's important to convey to your attorney that you expect to be involved. Consider asking to be copied on all communications, no matter how mundane. Take the time to speak with your attorney on some kind of regular basis to understand what developments have taken place. Ask your attorneys what they suggest you can do to assist in the litigation. If you're not happy with the level of communication coming from your attorney, try making a request for a telephone conference or an in-person meeting in writing.

You'll run up attorneys' fees, you say? Sure. Maybe being involved will cost you more. On the other hand, I've always maintained that the best litigation successes tend to result from clients that are interested and participate. That is, your success at the end of the day may eclipse any additional fees you incur.

Underway and making way.

--- JKF

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So it looks like the Dutch government pulled the plug on the teenager's attempt to sail solo around the world (http://www.wcjb.co.uk/dutch-girl-sailing-dream-torpedoed-by-authorities-18730). I don’t have an opinion one way or the other, but this news item gives me traction to tell you of a good read.

Kon-Tiki: Across the Pacific in a Raft by Thor Heyerdahl. If you haven't read it, pick up a copy and if you have read it, have another go. It's a great story about several fellows that built a raft of balsa logs and sailed 4,000 plus miles across the Pacific. The successful voyage supported the author's thesis that Peruvians were the settlers of various islands in the far Pacific. What a story though, alone on nine balsa logs with the sea's creatures, the weather and rippling currents. Storms, a reef, injuries and the ever-lurking panic of being swept into the sea make it a read that'll put some grit back into your seagoing affairs.

And yes, this post has a little bit of maritime law flavor; namely, that Thor and his friends didn't seem to need the counsel of any maritime attorneys to fight off a meddling bureaucracy.

Underway and making way.

--- JKF

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I’m writing this outside, under a morning sun, with a thin line of surf ripping along an empty beach. You really can’t beat that, huh? The last few days, I’ve wandered around the flats, trying my luck at snagging some unsuspecting pelagic. I’ve done alright and it seems like a bargain all parties can live with. I cast madly to and fro, occasionally a fish bites, we wrestle for a couple of exciting minutes, and it usually leaps free as soon as it gets close. Fun stuff.

At any rate, pulling things from the sea got me thinking about that anecdote of the English commons where everyone shares the resources, the sheep are happy, etc. That is, our coastal waters are pretty heavily regulated these days so as to preserve what resources are left. Dropping a line in the water and pulling up your catch usually means you’ve triggered some rule or regulation. Whether it’s a catch limit, a minimum size requirement, a species prohibition or a local licensing mandate, the point is that it’s not the wild west. From fines to the state seizing your gear and vessel, the penalties for the cavalier can be tough.

I bought a seven-day salt water license for a small fee and I’m not keeping anything I catch, so I’m probably in good water. If you’re a vacationer eyeing a new stretch of seawater, quiz a local on what’s needed and what’s not. And if you’re particularly good at planning, many coastal communities have toll free numbers and websites with fishing information allowing you to license-up even before you board the plane.

Underway and making way.

--- JKF

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Right, Fulweiler. So you say you can arrest a vessel, huh. Now how's that done?

It'll probably vary slightly between jurisdictions, but typically a lawsuit is started, the Court is asked to issue a warrant of arrest, and the United States Marshall's Service serves the warrant and seizes the vessel. Of course, I'm talking in very broad terms.

There's a lot of details that need to be treated such as providing the Marshall with an upfront deposit of monies from which it can draw-down for payment of its expenses, deciding whether a Substitute Custodian should be appointed to care for the vessel, publishing notice of the arrest, etc. Your admiralty attorney can walk you through the specifics.

The procedure is one thing, but remember that a vessel arrest doesn't mean the Plaintiff (the individual/entity initiating the lawsuit) automatically gains possession of the vessel. Ask your attorney to explain this important point. Feel free to tell your attorney that I like to explain that with a vessel arrest, the Court is taking the property and tucking it under its wing until the dispute is resolved and it makes a determination as to the disposition of the vessel.

Hey, PAN-PAN, PAN-PAN, PAN-PAN. Listen up friends, a reminder that this Blog is for fun. It provides general information designed to encourage some small talk and maybe allow you to spot an issue that will have you picking up the phone to call your attorney. There are no legal opinions rendered, no warranty as to anything I say, and for goodness sake, don't rely on anything you read here. If you want legal advice, talk to an attorney.

Underway and making way.

--- JKF

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