The Salty Barrister

Up here in the Northern Hemisphere, the Summer solstice signals sailing. And whether it's a weekend event at the local yacht club, or an organized regatta with a sea of colored sails, the sailing season brings a slew of racing events.

Sailboat racing can be fiercely competitive. In the small boat arena, pushing the limits of the rules and occasionally running into your friendly competitor usually never gives rise to anything that a little wax and some elbow grease can't repair. On the other hand, when a couple of forty foot vessels careen into each other, it's a different story. Serious physical and personal injuries can and do arise.

Ok, so now this is where it gets interesting. If you've raced sailboats you know that one boat can "protest" another boat's actions. These protests are resolved before a committee following the race in accordance with established rules unique to sailboat racing. And you know what, more and more courts consider the findings of the protest committee binding in a subsequent civil litigation.

Point being, if your boat is found at fault by the protest committee in a collision that involved injuries and vessel damage, your prospects of being able to get another ruling on the issue at Court may not be that good. Of course, each circumstance is unique and results could vary depending on the jurisdiction in which the dispute is pending, but it's something to keep in mind.

So the next time, you see someone saunter into the protest committee hearing with beer in hand, jocular smile, and disinterested air, think about pulling him aside and reminding him that the committee's findings might last a lot longer than the season's racing results!

Underway and making way.

--- JKF

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What the hell is going on? That's pretty much the gist of a comment raising a good question as to why admiralty jurisdiction was found in connection with a vessel arrest and seizure on the Lake of the Ozarks, Missouri. Here's why I think the Court got it right.

To set the stage, there's some older case law that declines to find admiralty jurisdiction on the Lake of the Ozarks because it's not presently navigable. (We'll assume that statement is accurate today, but it might not be. In other words, maybe the Court determined that the Lake is currently navigable which would likely give rise to admiralty jurisdiction.)

Ok, so what we know is that a lawsuit seeking a vessel's arrest was brought by a bank claiming an interest in a vessel probably arising from a financing agreement; perhaps, a Preferred Ship Mortgage. As a purely off-the-cuff deduction, the Court may have determined that a maritime contract was at issue which may have given it traction to invoke admiralty jurisdiction. In broad speak, when it comes to contracts and admiralty jurisdiction things aren't always so tightly linked to locality. In fact, just last year the Eighth Circuit (the Court of Appeals for this Lake's locale) reached a similar conclusion in connection with a policy of marine insurance.

At any rate, that's the best response and only idea I have at the moment. What I'm going to do is poke around some on the Court's docket (it's currently down for maintenance) and I'll see if I can't better understand the Court's reasoning. Like a Pan-Pan broadcast, keep listening for a further update and my thanks to Captain Charlie Meyer for raising the question. You can read Capt. Meyer's blog entry regarding the case here.

Underway and making way.

--- JKF

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I missed my Thursday Blog entry.  No real excuse because I could have stayed up and done it in the evening.  By way of explanation, I've been sidetracked with a house purchase.  That got me thinking this morning that there are some subtle but important differences between buying a house and buying a boat.

I've got a book coming out soon that'll try and treat most of those differences, among other salty topics.  But if you were crowding me at the local watering hole, I'd tell you the biggest difference between the two is the "lien".  In broad terms, a lien is a legal claim against an asset arising as a result of a loan, a debt, a service, etc.  In the housing world, the treatment of liens seems pretty straightforward in that they're identified on the property records.  In other words, in almost every instance concerning real estate, the world is on notice of the lien.  But boy, that's about as different from the maritime world as being afloat or ashore.  

Under the general maritime law, a lien almost always attaches to the vessel upon the rendering of a service, nonpayment of goods or crew wages, etc.  For instance, if a mechanic performs a repair, the lien for payment of that service automatically arises.  Again, in broad speak, the mechanic doesn't have to do anything for the lien to attach to the vessel.  The mechanic generally doesn't have to file the lien or give public notice all of which is the reason why you'll sometimes hear of a vessel having "hidden liens".

For the prospective purchaser, a hidden lien can pose potential downstream liability because the holder of a valid maritime lien can arrest and ultimately auction the vessel for payment.  It doesn't usually matter that the downstream purchaser wasn't aware of the lien because the claim is against the vessel.

I know you already know, but this Blog is not the place to get (and it doesn't provide) legal advice.  All I can say is that knowing something about the history of the vessel you intend to purchase, maybe speaking to the boat yard, getting a feel for the seller's situation and hailing your admiralty attorney are probably prudent considerations in any vessel purchase.

Underway and making way.

--- JKF

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When's summer coming, huh? Around here, it's cold enough to make you think we're still in March.

I read today that David "Fred" Brownell, an old stalwart of the New England boating scene passed over the bar (follow this link for his obituary); somehow learning that news seems fitting what with the gray skies and chill. If you've ever spent any time kicking around a boat yard, the name is probably familiar. A lot of my high-school and college years I burned-up climbing over and around one of his Brownell boat trailers. With their hydraulics and being submersible, they were a gold standard. Neat guy. No college, and no engineering courses and yet he could apparently design and build like nobody's business. We're all so tightly packaged these days with labels, degrees and certificates, makes you wonder whether there's any of that stock left . . .

You know, early in his career, Brownell built boats and so, he may have had the benefit of the Vessel Hull Design Protection Act. (Google this and take a look yourself: 17 U.S.C. § 1301, et seq.) This Act is unique to the maritime industry and provides copyright protection to certain vessel hull designs. These legal waters are little like sailing the Maine Coast, sometimes complicated, but worth the effort. Believe me, I'll put you to sleep if I get any deeper into the Act's mechanics, but it's the kind of thing worth storing away in case your cocktail-hour doodling yields a winning design.

Underway and making way.

--- JKF

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Well, the 'ol pirate alley off Somalia's coast is heating up, huh?  Great news about the Captain, but Christmas, what to do now?  I'm sure there's a heap of vessel owners trying to navigate these tough strategic waters.  I know wherever I have a beer as of late, I seem to get asked whether you can arm the crew.  Well, can you?

To legally arm the crew so that they might use deadly force to repel a piracy raises a briar patch of issues.  Typically, the law of a vessel's flag (meaning the country in which it is registered) will govern issues concerning firearms.  Still, the flag state's laws can be overridden by local law when you're in port or even within a state's territorial waters.  Now as for using these firearms, we're in the thick of the thorns.  The United Nation's Convention on the Law of the Sea (Section 107) can be read to mean that only a government may seize a pirate vessel, but what about repelling a boarding by pirates?  Unfortunately, the Convention doesn't seem to shed much light on the issue.  Another thing, the United States isn't party to the Convention so that's got to play into the analysis as well.  (I've seen some United States' case law that seems to hold that a private vessel could seize a pirate ship.)

Merchant ships in the past have armed their crews, and so my gut is that today's vessel owners can do so.  Certainly, I haven’t seen anything to say they can't and I've seen some case law which seems to support a vessel's right of self defense -- remember, though, these are my off-hour musings, not a legal opinion, ok?  Still, I'm not sure you're going to see vessel owners head down the arming route.  Civil liability, the numerous and varying laws in the states at which vessels call, and the potential for raising the risks to crewmembers may well outweigh the benefits.  

Hey, one last thing, don't be thinking that piracy provides an alluring alternate career . . . here in the States, we have one nasty bit of statutory law sentencing someone who is convicted of piracy on the high seas to "be imprisoned for life."  Nope, there's no qualification or lesser alternative in the statute, take a look if you want: 18 U.S.C. Section 1651 (2000).

Underway and making way.

--- JKF

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Here's something to mull. What if you had a car accident, and your car insurer told you there wasn't coverage because the accident occurred in December? Or, how about your insurer told you, "Sorry, you were driving on I-95 at the time, and we only cover you on single lane roads." No, wait, wait . . . what if their attorneys sent you a letter stating that your policy was never in effect because your car wasn't in very good shape and had a broken rearview mirror? Come on! Here's one more . . . you get a call from the insurer and a nice fellow explains that there's no coverage because you weren't driving at the time of the accident, your wife was.

Silly stuff, huh? No insurer's going to act this way, right? Think again, my salty friend. In the maritime setting, I've personally evidenced each of these positions having been taken by insurers. Marine insurance policies are very different animals from their shore-based counterparts. There's exclusions of coverage, there's warranties and there's a layer of general maritime law interpreting it all. Auto insurance is written for the masses and legislation largely insures that most policies look the same, which isn't always the case with vessel insurance. Even I'm guilty of sometimes tossing my auto policy into the cabinet without a thorough reading, but not my marine policy. I read that sucker from beginning to end. I want to know what the insurer expects of me and what I'm getting for the check I wrote them. A marine insurance policy is typically going to have various exclusions limiting your vessel's use during certain periods of time as well as the geographic local you can navigate, and it just might have a named operator provision.

Oh, yeah, there's a lot of riprap to be on the lookout for in your insurance policy. Come to think of it, maybe next time I shop around for boat coverage, I'll get the broker to pass me a copy of the policy before I write that check.

Underway and making way.

--- JKF

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This morning I was dealing with a case involving a Petition for Limitation of Liability. This is an area of the maritime law that'll make your trusts and estates lawyer's jaw drop. In fact, pretty much all attorneys who don't know about this little statute, will shake their head in wonderment when they hear about it.

Long story short, back in the day when shipping was getting on its feet, everyone came to realize that a boat could do a lot of damage, which could translate into lots of owner liability. Congress wanted to promote shipping, so it adopted a law which -- in very broad terms -- allows a vessel owner to limit its liability as the result of an accident to the post-casualty value of its vessel under certain circumstances.

Again, broadly speaking, if a vessel hits a dock and causes a lot damages, you'll probably see a petition for limitation of liability being filed looking to, well, limit the owner's liability. The big battleground usually involves a determination of whether the owner had knowledge of what caused the incident. These can be complicated cases with lots of procedural and factual issues. Interesting stuff, though. And, yes, the statute can apply in the context of recreational boats.

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