The Salty Barrister

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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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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You don't need to be a maritime lawyer to have reason to decipher nautical acronyms. And for God's sake, they're a lot of them. Buying a vessel or looking for dock space and you're going to talk about LOA or LWL and if it's a CFV you'll be curious about the GRT. Come to think about it, you'll also want to know its MPH and GPH and before you get underway, best tighten the PFD.

A trip south will take you through the ICW and, sweet Jesus, you'll need an MSD or you'll be picked up for a violation of the CVA. Don't know CELNAV, but you need to run at night which means you'll be awash in the glow of the RADAR. Word is that Congress won't fund LORAN anymore making us reliant on that dangerously fickle GPS. You could always DR, but it doesn't take much to get out of whack and then you'll hit a SNAFU.

Boating in the UV with some bubbly and you might get your BAC high enough to risk a BUI or an OUI and, at any rate, you'll risk an accident and that'll mean filing a BAR. And let me tell, whatever the case you'll likely need an attorney whose probably a member of the MLA and, know what, your friends and neighbors will think you're an SOB.

Uhh? What do they all stand for? Leave me a comment if you can't figure it on Google or Bing, and I'll lend a hand. LOL

Underway and making.

--- JKF

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I have a problem. It's not the kind of intestinal-tightening problem associated with seeing seawater sloshing around your cabin, but it's more of a problem than, say, a clogged sea strainer. Admittedly, it doesn't wake me up, but if I'm up, it'll keep me from sleeping. I talk about the problem, but I limit the discussion to immediate family. My wife? She can live with the problem, but it's an everyday thing now. The Internet, fliers on shop windows, and marinas are pretty much where I try to find a cure. Yup, it's a nautical diagnosis with a boat purchase being the prescription.

Look, half of you are hell'uva lot more practical than me. You'll go kick a few hulls, pencil out the numbers and buy a damn boat. Maybe I've been in the law business too long, because I can't seem to close the deal. There's a lot to consider. If it's new, what kind of reputation does the manufacturer have? Hell, my downstream remedies could be limited by the warranty so I'll need to take a look that. And then there's the whole place of sale and registry consideration which might impact on the sales tax.

Used is good too, but where do you start? You'll need a pre-purchase survey, and that'll mean finding a surveyor. I can try and find somebody through the National Association of Marine Surveyors or the Association of Certified Marine Surveyors. Still, surveyors aren't offering any kind of warranty and there's an awful lot of conditional-type language in their reports. I should probably ask to see a copy of any surveys the seller might have to compare it against my survey. And a used boat means I should speak to the marina where she's kept and see whether their mechanics did any work, or, whether this was a handyman's project which might be a warning of future maintenance issues. And, what about hidden liens? Maritime liens don't need to be registered and so that could be an issue. If it's documented, I could make a request for the Abstract of Title with the National Vessel Documentation Center which might help to identify any outstanding liens against the vessel. And, Christmas, new or used, I've got to worry the whole insurance bit. Rates, coverage, warranties, lay-up periods; that stuff gets complicated.

I don't know if I'll ever find a curative elixir, but I do know one thing. At some point, I'm going to get a boat, point the bow toward an empty horizon and enjoy the ride. Hopefully, it'll be a boat I buy myself, but the more I think about it, a nice charter may work just fine.

Underway and making way.

--- JKF

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I'm landlocked today. No smell of the sea, no freshening breeze, nor rattle of halyards. Still, I have a big sky and if I keep my head tilted just right, it's kind of like . . . .

Where are we now, mid-summer or thereabouts, right? So like any mid-something, it can be a time where basic familiarity begins to feel like lifelong experience and sloppiness weeps through your seems. Maybe you decide not to go back to the car to get another life jacket for the unexpected guest. Or, maybe, you justify those three extra beers with the self-assurance of your superior boat-handling skills. Maybe still, you throw a mental lather of optimism around in lieu of actually undertaking the preventative maintenance your boat needs.

The problem with these scenarios is that they can intersect in an ugly way with the maritime law. While beers and boats have an admitted natural affinity, boating while intoxicated is serious business. Aside from a rash of state laws (and a flotilla of local law enforcement driving spiffy boats likely paid for from the Homeland Defense till), you also have the federal law. The federales make it clear that operating a recreational or commercial boat while intoxicated is prohibited. The U.S. Coast Guard's regulations sets federal standards to prosecute violators based on behavioral signs or blood alcohol concentration. (And arguably, "operating" doesn't have to mean steering because the regulations states that an individual is operating a vessel when "the individual has an essential role in the operation of a vessel underway, including but not limited to navigating or controlling the vessel's propulsion system.") And that missing life jacket and overlooked maintenance? The U.S. Coast Guard has the authority to terminate a recreational vessel's voyage when it's operated with insufficient lifesaving or firefighting equipment, or in an overloaded or other unsafe condition. (Go on, take a look yourself at 46 U.S.C. § 4308 entitled "Termination of Unsafe Operation.")

So there you are. A literary rap on the knuckles to make you sit up in your Captain's chair and recognize that sloppy boating has consequences. What's that? Ok, so maybe it is a little bah-humbug, but that's how I get when I can't smell the salt water.

Underway and making way.

--- JKF

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Let’s face it, we've all been assigned a serial number in the form of a social security number.It seems everywhere you go these days, someone's asking for your "social." I guess that soft lexicon aims at trying to make it seem less Orwellian. How you wonder am I going to segue into something salty? Try this on for size, your boat has its own kind of "social".

A vessel manufacturer must identify each boat produced or imported with a hull identification number. The HIN, as it's called, must consist of twelve characters. The first three characters identify the manufacturer, characters four through eight are the manufacturer's serial number, characters nine and ten typically indicate the date of certification or manufacture, and characters eleven and twelve indicate the model year (i.e., "82" for 1982). Characters nine and ten can be decoded by understanding that character nine will be an English letter of the alphabet with January being "A", February being "B", etc. Character ten must be the last digit of the year of manufacture or certification. A visual guide to decoding your boat's social can be found below.

You can decode a portion of your social security number as well so as to learn the date and state of issuance. There's probably a clever observation to be made between a vessel's HIN and a person's social security number, but nothing's coming to me at the moment. Writing about social security numbers makes me feel like I've turned out of the harbor and into a gray sea scudded with chop and pressed low under a dark sky. A sense, I guess, of something unpleasant making its way ashore.

Underway and making way.

--- JKF

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