By John K. Fulweiler
If you’re an old barnacle with a massive motor vessel measured in tens of meters, platoon of polo wearing plebes and the luck of a society currently rewarding masters of the market, I’ve got something to remind you. There’s like 19,000 kids in Massachusetts that don’t have a home. I say sell your ship! Come on, with those sales proceeds you could do some good for those kids that’d really mark-up history. Plus, your squared off tin can isn’t even good looking – empirically.
Why not trade down this time for fifty feet of gracefully curved hull that’ll let you experience the visceral vibe of the sea? It’s all personal opinion, but boojee boaters like you deserve being called out. The cool guys and girls bend the ocean blue for the love of lapping water, press of wind and sweep of horizon something you’ll never nourish from the fantail of your floating fatuousness.
We live in weird and gilded times where the gap between those being lifted and those being headed is growing scarily wide. Maybe tucked away in this country’s middle or piddling along in four lanes of morning commute you can’t see the skittering jets, the panoply of painted hulls, the overwrought and overpaid.
And the moats and towering spires aren’t back just yet, but they’re here in other ways.
If you haven’t slipped on the blood leaking from my bleeding heart (no worries, your skipper of this script is more Eisenhower than Sanders), allow me to link my comments with a legal takeaway that’ll settle your salty soul. It’s a workaround. A hack.
The ocean waters are generally considered to be shared commons, but we all see the private docks sprouting out from the headlands Chia Pet-like and the “No Anchoring” signs and the harbormasters in federally funded vessels looking for a fight. But understand something – you may have some “hidden” rights that allow you to seek refuge from a storm irrespective of whether the dock is private or not. Careful here, because what I’m going to lay out is as thin as the galley table veneer and you should check with your own admiralty attorney!
Let's say a major storm is approaching and you’re on your sailboat with the family. You’re cruising in Maine and you don’t know the area too well. You’re concerned for your and your family’s safety. A private dock is off to starboard, just inside a cove, but when you approach the homeowner shoos you away. You call me and even though the wind is in your mic, I hear this: “Can I tie up to that darn dock ‘cause if I don’t I’m worried we’re going to get blown into one of these ledges.” My answer: “I would.”
Like most things in the maritime law, it’s murky. Under International Law, there’s the doctrine (maybe too strong a word) of “safe harbor.” That is, no port should be closed to a foreign vessel seeking shelter from a bad storm. Whether this “safe harbor doctrine” is actually respected is something I see questioned in various law review articles. Plus, in our scenario, we’re talking a private dock as opposed to a port. I found an older case explaining that under the maritime law, there’s “a clear policy to permit mooring along the banks of a navigable stream at least where it is done in refuge from catastrophic weather and with the exercise of reasonable care.” A Vermont state court case once analyzed a similar fact pattern along the lines of private necessity and trespass. It favored the sailboat owner although any damages to the dock would likely have to be paid for by the owner.
I don’t know how the issue would ultimately come out at trial, although I’d wager in favor of the boat owner. On a related note worth filing in the same locker, there’s a Florida statute (and I need to check whether other states adopt a similar approach) prohibiting a marina from enforcing a policy requiring vessels to leave after issuance of a hurricane watch or warning (Fla. Stat. § 327.59). I’m not including some of the statute’s qualifying language, but it’s a good law to remember.
Curious stuff. Don’t idle on my opinion piece, but give some consideration as to how to handle finding refuge in a storm. You might do well to remember the words of my old flight instructor: “Always be looking around for a place to put the damn plane down!”
Underway and making way.
John K. Fulweiler, Esq. is a licensed captain and a Proctor-In-Admiralty. His legal practice is devoted to maritime law and he represents individuals and marine businesses throughout the Atlantic and Gulf Coasts. He does not represent insurance companies. He may be reached anytime at 1-800-383-MAYDAY (6293), or at his Newport, Rhode Island desk at 401-667-0977 or firstname.lastname@example.org.