The Salty Barrister

Here's to keeping you all up to date.Yesterday , the United States Supreme Court issued a decision on a maritime personal injury issue. Generally speaking, a seaman is entitled to maintenance (a form of stipend) and cure (medical care) when injured.

Despite some arguments otherwise, the Supreme Court has now held that a seaman can seek an award of punitive damages when the maintenance and cure obligation is willfully and wantonly disregarded. The case, for those legal eagles out there, is Atlantic Sounding Co. v. Townsend, 08-214.

Underway and making way.

--- JKF

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Clarifying The June 18, 2009 Post

An anonymous reader correctly pointed out that my comments regarding vessel documentation in my last post seemed contrary to his (or her) experience, having previously documented Taiwanese manufactured vessels. The caveat that needs to be added is that, generally speaking, for any vessel for which a coastwise, Great Lakes, or fishery endorsement is sought, you need to prove the vessel is built in the United States. To prove that a vessel is deemed to have been built in the United States for documentation purposes, all of the major components of the hull and superstructure must have been fabricated and assembled in the United States. See, 46 C.F.R. §67.97.

--- JKF

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Warm weather, the smell of a grill and that crisp tinny sound of an aluminum can being cracked open. Ah, summer has arrived in the Northern Hemisphere and it couldn't have come sooner. Point being, you're going to be milling around the Club, maybe joining the crowd down on the dock, and generally socializing all of which calls for some witty repartee. I kind of hoard my wit, but for bridging the gaps between your humor, you're welcome to borrow from the following flotsam and jetsam:

• Seawater has a salinity of about 3.5%, it's denser than freshwater, and it freezes at about 28.4° F.
• For a vessel to be documented in the United States, all of the major components of the hull and superstructure must have been fabricated and assembled in the United States.
• If you strike a buoy or other navigational aid, you must immediately report the incident to the nearest Officer in Charge, Marine Inspection Office.
• A United States documented vessel may (by custom) fly a yacht ensign (the flag depicting a fouled anchor with thirteen stars) in place of the national flag when sailing domestically, the rule of thumb on flag sizes for vessels is 1" for every foot of vessel length, fly the flag of the country you're visiting on the starboard halyard, and if you're flag isn't lit after sunset, you shouldn't be flying it.
• Slip F-18 is where Travis McGee kept his 52' houseboat (the "Busted Flush") at the Bahia Mar Marina in Fort Lauderdale. (You can pull in there and they've got the plaque for that slip in the office.)

Use them sparingly, drink and tan responsibly respectively, and soak up enough warm memories to last you through another winter.

Underway and making way.

--- JKF

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I nearly forgot what I was going to write in this entry. Must be something to do with all the rain we've been getting in the Northeast; tired neurons being washed away. At any rate, wage penalties are on deck.

The Wage Penalty Statute is a scary bit of legislation that provides, in broad speak here, for the application of a penalty when a seaman's wages are withheld. The penalty can add up to big sized numbers because it's based on a double-wage calculus. ("The master shall pay a seaman the balance of wages due the seaman within 2 days after . . . the seaman is discharged . . . When payment is not made without sufficient cause, the master or owner shall pay to the seaman 2 days’ wages for each day payment is delayed." See, 46 U. S. C. § 10504. See also, 46 U.S.C. § 10313) Yachts, fishing boats or one of the other excepted classes needn't worry as the statute's penalty aspect has a carve-out exception for y'all, but, of course, check with your attorney whatever the circumstance to make sure I'm not all wet. (I'm curious as to what constitutes a "yacht"? We'll investigate on this end and report back.)

I missed the Super Bowl once because of a deposition I had to take in a wage penalty case. Good thing husbands with Southern born wives aren't amenable to penalties for missing such sacred events because I would've been looking at quite a claim!

Underway and making way.

--- JKF

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Losers weepers, finders keepers.  That's the adage we all know, right?  Well, the Kingdom of Spain lost a ship of silver and gold coins to British gunboats back around 1804.  A few years ago, an industrious treasure hunter found the lost wreck, recovered a lot of the booty and then ended up in a tussle with the Spanish government.

So the case is pending in the federal court in Florida where the Kingdom of Spain argues that the United States courts have no jurisdiction under the Foreign Sovereign Immunities Act.  The issue is briefed and then referred by the district judge to the magistrate judge for a recommendation.  What's the magistrate do . . . decides Spain is right and recommends the case be dismissed.

I read the decision.  It's well written and if it captures the presentations correctly, then the salvor may not have had much of an argument.  The gist of the Court's decision is that Spain never gave up its ownership rights to the sunken warship, and that it possesses a sovereign interest in preserving the wreck and its contents.

Why was the case pending in Florida, you ask?  The salvor brought some of the booty into the jurisdiction of the Middle District of Florida (Tampa area) and commenced an in rem action.  Under the law of finds, the Salvor sought possessory rights and ownership over what it had recovered as well as the wreck's remains.

It's an interesting case and if you want to read the full decision, let me know.  I'll keep an eye on the docket and report back on whether the district judge adopts the magistrate's recommendation.  (FYI, I'm voting it's adopted hook, line and sinker.)

Underway and making way.

--- JKF

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"Was that you? That last blog entry. It wasn't too tight, you know? The way it read, I felt like I was in a classroom."

"Yea. That was me. Maybe I hadn't had my coffee. Still, it's maritime law and that stuff is hard to make sexy. It may be all about the water, but it's still pretty dry."

"Umm-mm. Your other entries were ok. I liked them. That last one though, crap."

"Ok. Gotcha. Anything else on your mind?"

"Nope. Just that last crappy blog entry. Oh, and this kid who fell on the deck of my sport fish. He busted his ankle up good and now he's got some attorney sending me letters 'bout the Jones Act. I'm gonna do the right thing, you know. I just don't need an attorney crowding me. It's disrespectful. Give a man a chance to do right is what I say."

"How long did the kid work for you?"

"Didn't work for me. We paid him through my in-law's company that owned the boat. I called it 'my' boat, but it was my in-laws. I don't know, 'bout a year or so. He was a gopher. Get that, do this. That kind of stuff. He kept the boat going alright, though."

"Ok, well the Jones Act is all about seeking a remedy against an employer. If the attorney is shooting you letters in your individual capacity and you weren't the kid's employer, maybe he's got himself sideways and doesn't know what he's doing. Still, it sounds like the kid would likely qualify as a Jones Act seaman because he's contributing to the function of the vessel and he's been doing so for about a year."

"There we go. Wasn't my fault anyways. Kid was drinking with his buddies and missed the step getting off the boat."

"You see, these cases are so fact driven. That fact right there is going to be important because they're cases out there which have found against a crewmember due to his intoxication."

"So how do we play this? Maybe I get a witness or two on the intoxication angle?"

"That's a start. When did this happen."

"Hell, I can barely remember. It has to be three or four years ago, something like that."

"Well, there's another potential defense to keep in mind. Jones Act claims must generally be brought within three years of the date of the incident."

"Sounds like we can beat this claim, huh?"

"We'll see. Remember one other thing, though. The burden of proof in Jones Act claims is not that stringent. In other words, typically in a Jones Act case, the negligence is deemed the legal cause of the injury if it played any part in causing the injury."

"Good to know. Thanks, man. I'll be in touch."

Underway and making way.

--- JKF

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Alright, settle down. I know you've been waiting to learn all about the Jones Act, but we don't offer that kind of information. We're like a chart in a brochure that gives you some orientation, points out a few prominent features and makes you want to buy the NOAA Chart. Still, that doesn't mean we can't give you some walking around knowledge . . .

First off, remember that the maritime law generally affords special or different protections to crew members. For instance, the Jones Act gives seamen the right to sue for monetary damages arising from personal injuries caused by an employer. The Jones Act was adopted in 1920 and prior to that date a crewmember could only recover against an employer if it could be shown the vessel was unseaworthy.

Now, you're no doubt wondering, how does the Jones Act define "seaman" and my response is that Congress left for lunch during that portion of legislative activity because it's undefined. Yup, case law has been left to navigate these narrows leaving, as you can well imagine, a rich history.

In short, whether or not you qualify as a seaman is a fact-driven inquiry which focuses on the circumstances of your employment. Contribution to the function of a vessel in navigation that is both substantial in terms of duration and nature is the typical focus of any examining court. Duration of employment and the nature of the employee's activities are prime considerations.

Seaman status is not a snapshot kind of thing. In other words, the relationship is viewed from a more long-term perspective such that the fellow who's aboard for the afternoon to fix the electronics is not likely to obtain Jones Act status and, vice-versa, the seaman injured ashore is not likely to lose his/her status.

Next up . . . we talk about the Jones Act and recreational boating.

Underway and making way.

--- JKF

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