This blog is for fun. There is NO legal opinion offered and NO attorney/client relationship is formed under any circumstances. The comments relayed herein may or may not be accurate. There's no warranty as to accuracy, no warranty as to whether you'll find any of it interesting, no warranty as to anything. If you have a legal issue, contact an attorney and DO NOT RELY on anything stated herein. Again, I'm blogging here, NOT lawyering.
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The Salty Barrister
Experienced admiralty attorney John Fulweiler shares some insights into the "Law of the Sea". Capt. Fulweiler grew up as a RI Boater, and spent several of his collegiate summers as a Safe/Sea Captain.
Despair
John Fulweiler - Tuesday, May 18, 2010
There are thirty islands in Narragansett Bay, and Despair Island is the smallest. After having claimed two lives this past weekend and, as these things tend to do, no doubt upending a dozen others, it's also the most aptly named. I don't know much about the facts of that incident aside from what's on the tube, but I know what it's like to run into a ledge at night. Too many years ago, I was coming back from Newport and foolishly looped around the north end of Rose Island on a low tide. Wide up on a plane, I walloped a ledge and sheered the very bottom of the outboard's lower unit off. Humbled and rattled, I idled my way home. I was fortunate that evening.
The Navigational Rules for International and Inland waters require, and I paraphrase, a speed appropriate for the circumstances. How many times have you seen a powerboat blasting its way down the Bay on a foggy day? Alright, I'll volunteer, a fair bit. And sailboats don't get off easy here either. I've seen sailboats zipping along with a crowd aboard, but no one looking under the jib or over the rail. That's just as dangerous and violates the Navigational Rules regarding the maintenance of a proper look-out.
We're all about to lug children, spouses, beer and sandwiches aboard and head out onto the Bay. It'll be good times because, thankfully, the ledger sheet for such things on the Bay is way in the black. All I ask is that when you get underway, you keep a little despair in mind.
This is a great time of year. The sun tips forward and starts pouring on some serious rays, and the water starts sparkling and zipping in a way you only get in this hemisphere during the summer months. Alright, enough of my meanderings 'cause for the next few days, I'm trapped up here in an office pushing the maritime law around.
There's an interesting case against a yacht broker that anyone who's fixing to sell or buy a boat should read. Plus, for you Rhode Islanders, there's a bit of a connection because some of the parties are from the Ocean State. Long story short, fellow buys boat in Florida, boat allegedly fails to perform as advertised in allegedly serious ways and a lawsuit follows. Anyway, on April 28, the jury rules in favor of the plaintiff. If you Google "yacht lawsuit florida," you should be able to find some news articles about the matter.
I'll be curious as to what you all think about the result?
Underway and making way, 19 floors up.
--- JKF
Editor's Note: here's an URL to an article about this case in the Miami Herald for John's readers' convenience...
Interesting case in that I have always thought that in maritime law each party was somewhat to blame. The question was only what percentage to which each party was at fault...... This article says a Federal Jury ?? I am suprised that the owner/seller was only held 10% accountable. He did know what claims that HMY was making.
Also now that they were found guilty can criminal charges be filed.
Anyone buying a $2,000,000 yacht should be having his own survey done before writing the check.
And why was the Florida surveyor not held more responsible ??? Did he make a proper assesment of the boat and did the buyer (so in love with the boat) not read the survey ?? Or ignore the facts ???
Some questions not answered here. Lets see the survey........
7-Eleven Ain't 7487
John Fulweiler - Thursday, April 08, 2010
They’re some tired neurons staggering around my frontal lobe trying to salvage a distant memory of an anecdote about publishing. It went something to the effect that writing was more than just putting words on paper, it was about people reading your words. Well, whatever. Point is, I put words on the screen for consumption and it’s awfully nice to get the occasional comment . . . no matter whether I agree with it or not.
Earlier this week I wrote about a Bill pending before the Rhode Island legislature. The Bill aims to prevent marinas from prohibiting boat owners hiring outside vendors. I got a good comment in response which you can read under the old post. It’s a well written and there’s a sense of earnestness to the whole thing which makes me reply in kind.
The comment argues that a private property owner – like a marina – ought to be able to pick and choose who it wishes to have on its property. I agree with this underlying premise, but it doesn’t change my mind. Let’s start from the beginning. A marina is not a hotel or a restaurant. It’s not simply allowing an owner access to its facility to buy or use a product. A marina leases people physical space to moor/berth a vessel. Its primary product is a parking space and because of that, I believe that any analogy to other industries is distinguishable.
Think of it this way. Allowing marinas to prohibit vendors essentially compels an owner to use the marina’s repair and maintenance services. Oh, I know, free market and all that, but is that defense reasonable when you’re locked into renting a slip for the season? Am I really going to have my boat towed somewhere else for repairs? Probably not.
But listen. Please understand, I’m not advocating anything more than my gut feeling on the matter. I’ve got some good arguments favoring the marinas’ position, too. Hell, like I mentioned in the original post, they’ve got a lot more expenses than Vendor Vic and his panel van. And maybe most importantly – and an unspoken reason that might have me voting the other way – this State needs marinas. Marinas employ folks. They’re lots of temporary jobs at marinas that keep kids busy and help other folks who might be between things. They also preserve trade skills and talent that might otherwise be lost in a whirl of websites and whirligigs. Marinas – particularly the good ones – are a community anchor, are watchdogs over the coastline, and are our last stand between the water’s edge and a line of McMansions and Condos. Oh, come on, you know what I mean.
John, you raise an interesting point that I hadn't considered in my previous comment; that there are actually two competing private property interests here. The marina/yard that owns the real estate, and the boater, who owns his boat. You have sided with the boater in your analysis, arguing that the boater should retain the right to decide who actually visits his property, be they guests or mechanics, otherwise the boater is a hostage of the marina. However, this boat-as-hostage dynamic certainly doesn't come as a surprise to the boater who agreed to that when he signed his lease.
My final thought would be this: if the boat is to be repaired in the water, then the boater has in effect rented that space and he should be allowed to have any tradesmen he wants to attend to the boat.
On the other hand, if the boat is hauled out on the hard, I think the yard has the right to control who works there. Yard work is usually a collaborative effort of highly skilled tradesmen working in coordination through a single manager. Outside vendors don't answer to the yard management, and the conflicting agendas usually end up costing the boater more than he saved by hiring the vendor in the first place. Furthermore, yard work is potentially dangerous and environmentally challenging. The yard should maintain the right to dictate how all the work is done and by who within their fence.
Anonymous commented on 08-Apr-2010 05:34 PM
As a marina owner, I have the following thoughts:
This law would create a wide variety of problems for the marina owner and, ultimately, for the marina guest. At the first level (and as discussed above), the marina owner will be held liable for any environmental discharge/damage caused by the contractor. Taken to its logical extreme, this may mean that the marina owner can not restrict a fuel barge from coming into the marina to supply fuel to a vessel. What happens when that barge runs aground or spills large (or small) quantities of fuel in the process? Similarly, the marina owner will be subject to liability when the contractor's ladder slips and he gets hurt, even though the marina owner had no ability to manage the work being done by the contractor.
This bill assumes that every marina should essentially double as a boat yard - causing danger and disturbance for all other guests at the marina through noise, dirt and safety concerns. Many marinas (including virtually all operated by my company) do not have yards associated with them. We restrict the type of work that is permitted to be done in our marinas in order to protect the environment and protect the safety and security of the other guests. We also do it in order to ensure that our marinas remain quiet and inviting for everyone.
There are plenty of boatyards in the world and RI should not create all of these problems - and effectively turn private property into a public workspace - simply because it may be inconvenient for a yacht owner to take his/her boat to a yard. This is something that should be decided by mutual agreement of the yacht owner and the marina he selects for his boat. If the yacht owner does not want to be at a marina that restricts work, then the boat owner always has the right to dock elsewhere.
More importantly, marina owners are - and should be - required to maintain their facilities well and ensure that their facilities do not harm the environment or endanger the health and safety of visitors and employees. This bill prevents the marina owner from fulfilling this responsibility by forcing the marina owner to allow others - who may not be qualified or careful - to do dangerous and/or dirty work on the property with virtually no regulation. Unfortunately, it will ultimately result in higher prices for slips, more damage to the environment and dirtier/less inviting marinas.
Anonymous commented on 09-Apr-2010 03:31 PM
John, your most recent poster mentions that his company owns a number of marinas. Interestingly, it is a specific group of local marinas (all owned by the same company) that are the reported basis of this proposed legislation. As a businessman and former customer of these marinas, I would not argue their aversion to liability, In fact, I empathize with their position and can fully understand their desire to take precautions to protect themselves and their investments. I support their decision to require tradesmen to provide proof of insurance, as well as their "stewardship of our environment. However, the last poster fails to address the root of the problem, and instead dances artfully around it citing the "danger and disturbance for all other guests at the marina through noise, dirt, and safety concerns." First, I would argue that the noise, dirt, etc exists regardless of who is performing the work. I hardly think that a marina hammer produces far fewer decimals that one being wielded by an outside contractor. Boat upkeep is a natural part of every owner's season, and I believe that many, like myself, would argue that without the slap of halyards on a mast and the sound of sandpaper on wood, we would hardly recognize the difference between our afterdecks and our backyard decks. It is precisely these sights, sounds, and smells that have drawn us to boating for many generations. Second, there are still many local, family owned marinas that allow outside contractors in to provide a service, and still manage to remain open and produce a profit year after year. They do so knowing that to take away this option would inevitably force the owners to pay more for the service, potentially driving them from their boats and the water. I should also mention that in my many years of boating, I have witnessed marina staff perform work they were in no way trained or qualified for. Let us please put aside the fanciful notion that all marina workers are factory trained mechanics or RISD trained bottom painters. Many are simply teenaged workers looking to earn money between semesters in high school and college. Finally, I'd like to address a point you made in your original post on this matter. Almost every marina I have ever patronized was a community within a community. The staff and customers formed relationships and bonds that made each return year after year. If work needed to be performed, all it took was a quick visit to the office, and one could be assured that the problem would be solved by the following weekend. Work orders were written on a friendly smile and a handshake. The customer was comfortable knowing that the work would be done right, and the bill would be reasonable. The staff performed this work and billed on the premise that a dissatisfied customer this summer was someone else's next summer. Sadly, the increase in marinas owned by companies instead of individuals has caused a shift in this dynamic. Some marinas and their management forget that the supply of new boaters is finite, especially in this economy. Overpriced work performed in a shoddy manner, and contracted by unfriendly "business first" management forces boaters to look elsewhere for their services. To all those that argue that this is simply a reduction in liability and an increase in environmental awareness, I pose this question: If this isn't about money, why would a marina begrudgingly allow private contractors on its grounds but insist that a 10%-20% fee be assessed to the boater, added to the bill, and paid directly to the marina?
Stolen Seaweed
John Fulweiler - Tuesday, March 30, 2010
With the temps rising some, those bright blue days of boating are near. So in between your yacht's work-up and while the evenings are still chilly, it's not such a bad idea to scan your state's local boating laws. They're likely easy to find online and kind of interesting.
Interesting, you say? My God Fulweiler, you're asking me to read state statutes? Yes, yes. I know it sounds like the Friday-night bit of a lonely maritime lawyer, but it's seriously helpful and, frankly, not much worse than, say, a guide to 12-Volt electrical systems which I'm having a terrible time getting through.
Trust me. Reading these state statutes is helpful because it primes your noggin with some concepts that you'll likely remember when needed. For instance, a lot of states have statutes addressing the liability of an owner for injury or damage caused by the negligent operation of a vessel whether or not the owner is on the boat. Other statutes speak to speed restrictions in certain local waters, lay out penalties for failing to heed the command of local law enforcement, and sometimes address topics that'll make you chuckle. For instance, in Rhode Island, there's a specific state statute speaking to how only the residents of a certain town -- and no one else -- are allowed to take two vehicle loads of seaweed a day from a certain beach. What's the penalty for violating? Apparently, $10.00 for each and every load "so carried off."
A great group of sailors sat through my brief towing and salvage lecture this past Saturday at the Newport Yacht Club. Sure, maritime law can get dry, but I kept a nice tempo going and everybody was gracious enough to keep their eyes open! What's that? Yea, there were some good questions.
The take-away (yep, my nod toward pop-culture jargon) was that salvage continues to be misunderstood. A salvage claim is nothing more than a claim for money based on the claimant having saved a vessel and/or its cargo from loss. Broadly speaking, to qualify for a salvage award, the vessel must be in peril (actual or imminent), you can't have had a pre-existing obligation to assist the vessel, and you need success. Sure, salvage rights generally give rise to a maritime lien, but right to ownership of a salvaged vessel? Not usually.
Why all the confusion? In my personal opinion it's due to two factors. First, salvage is old as dirt. Look back thousands of years and you can find some derogation of the concept. Pretty much like what old age does to us, old legal concepts have a lot of baggage, too. Second, we're all so used to the "time and materials" approach to paying for services that the concept of a "reward" get's everybody tacking sideways. Still, in my opinion, the maritime law concept of salvage works, and I challenge you to propose a different remedy. (Full disclosure, I used to be in the salvage industry myself so I like the stuff, but seriously, what other than a "reward" would roust someone from a warm bed in the middle of a gale?)
I scrabbled up a hundred miles of tarmac and crunched across a gravel parking lot to hear a revealing discussion about a proposed Liquid Natural Gas terminal to be located in Narragansett Bay, RI. Yup, you heard me right. Some oil folks want to drop a terminal in Mount Hope Bay and sail some massive looking LNG tankers up and down these inland waters. Watch my phrasing here, IN MY PERSONAL OPINION, this is a rotten idea. The talk was given by a fellow from Save-The-Bay and they have additional information on their website: http://www.savebay.org/Page.aspx?pid=1279.
You know, I worry some about these kinds of, IN MY PERSONAL OPINION, wacky proposals. Times are tough and the resolve of the populous is weakened by the sheer effort of living. It's like a boat owner juggling a newborn, a job, extended family commitments, a mortgage, and car payments. Yeah, the boat gets launched, but she's got that creeping unkempt look. You know what I'm talking about, dusty sheer to fiberglass, bleached-out canvas cover, frayed lines, beard of green on the lower unit, etc. There's just too much else stealing the owner's time and next year, well, the owner's heard to say: "Heck! I'll just let her sit this season." And the leaves gather, and the fiberglass splinters, and the bright-work flakes and then she's just an eyesore. A vine wraps up and around a boat stand and a year or two later, in the snap of an Autumn breeze, the stand kicks out and the boat smacks down. The hull's cracked and they cut her up, and pile her into a container.
To be blunt, things and people and relationships take effort. If you think something like this LNG proposal isn't what you want for the Bay, you gotta stand-up and do something. Call Save-The-Bay, call your local legislator, call somebody and voice your opinion. "We all think of the inconvenience of making an effort. We're all going to do the right things a little later on. Soon. But soon slides by so easily." (J.D. MacDonald, Cinnamon Skin, p. 75, John D. MacDonald Publishing, Inc., 1982)
The Brayton Point coal burning power plant in Fall River is amongst the dirtiest polluting power plants in the region. LNG will abate most, if not all of it's emissions. Some experts have suggested it is the culprit for our area's extremely high cancer rates. The ships that carry LNG are safer than the gas barges regularly transported now and contrary to STB's alarmist approach, will only be as large as the NB waters can accommodate. They are newer and built to the most exacting safety tandards. The actual disruption in recreation will far be less intrusive than claims made. The claim that it will disrupt current economic activity is absurd as the contrary is true. Yes, some fisherman and quahoggers won't be able to catch in the immediate area but the jobs the construction of this facility will create far outweighs in terms of area benefits. As an avid recreational boater, I'm willing to endure a minor inconvenience for cleaner, cheaper energy. Before deciding on this important issue, look beyond Save The Bay for unbiased information.
The Marrying Kind
John Fulweiler - Monday, February 15, 2010
Ok, so some of you are likely dusting off your luggage and getting ready for a cruise somewhere warm. I'm not, but I won't hold it against anybody. At any rate, things can happen aboard a vessel and, who knows, maybe you'll meet your soul mate. Maybe you'll even decide that, level-headedness be damned, you're getting married! So the captain says, "Right. Sure thing." And now, looking at yourself in the mirror some moons past, you wonder: "Was that deal even legal?"
First things first, these are my very general comments on this question. I am not giving legal advice so for Pete's sake, don't rely on anything I'm saying. Treat my comments like a dinner-mat chart at a seafood eatery: fun to look at, but nothing you're going to sail by.
Now, let's talk about one aspect of the issue. Title 46, Section 11301 of the U.S. Code is entitled "Logbook and entry requirements." Among other things, a little ways down the page you learn that a master shall include in the official logbook each marriage on board. So there's this 1929 decision from the New York Court of Appeals in a case called Fisher v. Fisher. The Fishers were sailing aboard the steamship Leviathan from New York to London in October, 1925. Somewhere around forty miles out of New York, the Captain conducts a marriage ceremony, and four years later the court is called on to answer the question whether the Fishers were "lawfully united in marriage." Do you know where I'm going with this?
The Court found the Fishers were married and one of the things it looked to in reaching this decision was that U.S. Code section requiring marriages be logged in the official logbook.
So again, this is just one aspect of the Court's reasoning and it's only one state court of appeals. Who knows how things would turn out in any particular case, especially in these modern times. But there's some food for thought, eh?
Underway and making way (having been happily married ashore.)
Vessel Assist Dana Point commented on 22-Feb-2010 11:33 AM
Almost anybody can marry them. I want to know about granting divorces. If we can marry them, how can we get in on the other end of the transaction! dd -Vessel Assist, Wedding and Divorces
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