The Salty Barrister

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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You might read this blog for its fine writing and clever material, and not have a wit of sense about the sea. You might not be able to swim. Merely reading the word "boat" may invoke a wave of seasickness. Still, a cruise ship holiday could be appealing and I can see you succumbing to the cruise industry's splashy advertisements. Hell, you'll no doubt thoroughly enjoy yourself. (I was once told that the cruise industry has the highest return rate of any leisure-time activity so, if true, there's clearly a rollicking time to be had.)

All of this brings me to my cogent observation of the day. A personal injury claim can be skulking around the corner. I know that sounds dreary, but we all fall prey to twisted ankles, fractures and lacerations. It's the curse of ambulating upright, I suppose. At any rate, remember this, if you should sustain an injury and you intend to make a claim against the cruise line, read your passenger ticket. That neatly printed, likely tri-folded bit of paper sets out the terms and conditions under which you have agreed to sail as a passenger. It likely imposes a one-year time for suit provision, it might require your lawsuit be brought in a specific location, and it may require you give notice of your claim prior to filing lawsuit and within a certain time period. (Remember too, a lot of this jazz will probably apply to any kind of claim, not just those concerning personal injuries.) Listen, the Supreme Court of the United States has upheld enforcement of the terms and conditions of a passenger cruise ticket, so you really have to read it carefully.

Come to think of it, the language of your passenger ticket be it a cruise ship, ferry or even an airplane is almost always going to be important. And yes, as much as I hate to admit it, a damn sight more important than this blog.

Underway and making way.

--- JKF

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You're a boater, right? You know a bow from a stern, a bilge from a scupper, a cleat from . . . you get the idea. But, indulge me, what'd be like if you didn't? If you stepped on your boat, bright eyed and without a wit of knowledge, how the hell would you feel? A bit lost, eh? That's why in a world of increasing intricacy, I continue to sign onto the mantra of well-roundedness and that, friends, means knowing a little about a lot. Enough to get you around is how you might think of it. Conversational knowledge. In that vein, store away these nuggets on the law in the event you find yourself caught up in a maritime maelstrom.

When a maritime lawsuit is filed in federal court, a defendant usually has twenty days by which to respond. You can typically respond with an Answer (responding to Plaintiff's assertions and setting out affirmative defenses), a Motion to Dismiss (seeking to extinguish the lawsuit on the basis of, say, it being barred by the statute of limitations), or some other application to the Court such as a motion seeking additional time to respond or a motion seeking a more definite statement (seeking clarification from Plaintiff as to what it's asserting.)

An admiralty lawsuit that names a vessel as a defendant must be "verified" meaning that the plaintiff (the party bringing the lawsuit) must sign a statement attesting to the truthfulness of the allegations contained therein.

Maritime arbitration is a forum in which you resolve a dispute outside the judicial system. The arbitration process will attempt to resolve issues of fact and law, and the outcome is almost always binding. On the other hand, a maritime mediation is like a settlement conference in that the goal is to reach an amicable resolution rather than resolve issues of fact and law.

A "motion" is an application to a court seeking some kind of relief. Motion papers usually consist of a Notice of Motion, Memorandum of Law, and accompanying witness declarations. An opposing party will have an opportunity to oppose the motion.

Don't ask me whether you'll be sued. From what I've seen, getting a suit filed is a pretty low threshold. The question you should be asking is: "If a lawsuit is filed, who will prevail and what are my claims and defenses?"

Absent a specific contract term or specific law, my bet is that you'll almost never recover your attorneys' fees and costs. If you can demonstrate bad faith (an arguably high standard), a Court sitting in admiralty may award you fees and costs.

Underway and making way.

--- JKF

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