By John K. Fulweiler
When you’re a boat lawyer in a boating town, well, questions get asked. Doesn’t matter where I am or what I’m doing, as soon as the admiralty lawyer label is unfolded, there’s a twinkle in my fellow sailor’s eye. A knowing flash of “finally,” unfurls across their face and I brace for what’s to come, sort of like when the bow dips down and it’s a toss-up as to whether it’ll be a mere shudder and shower of spray, or a stumble and sluice of green water.
“Okay, I got one for you,” she might begin, easing into a complicated fact pattern implicating foreign jurisdictions and likely English law. Or it can be less conversational, with a straightening back and serious eye accompanying a ponderous problem involving a vessel sale. And sometimes, it’ll be a nice pitch right down the middle where with glove ready I neatly catch the issue and respond in a knowing, worthwhile, “I really do practice maritime law” sort of way. Mind you, I never mind the questions, it’s just that like the nuances of making a boat go fast, the law is complicated and I regret my advices can’t always be short, pithy and on point. Too often, my answers necessarily must be qualified, hesitant and dependent on facts unknown and circumstances speculative. And so, like roll tacks practiced in an imaginary scrum of competitors, I’m going to serve myself a few imaginary questions that’ll impart some useful information and will leave me this autumn day, warm and fuzzy in a non-alcoholic way.
First up, there was an article on Coast Guard boardings in the last issue. Since my soapbox is buried deep in the back lazarette I’ll spare you my views on the antics of the federales, but let’s focus on when the Coast Guard damages your boat. Is there a remedy? Indeed, under the Federal Tort Claims Act. Ask the boarding officers for a form SF-95 before they disembark and it’ll show you mean business because this is the paper that needs pushing so you can get compensation. Take photos, too. Get names. And try like Job to stay patient and friendly because you’ll get more information that’ll help your claim this way. Remember too, you’ll never, ever win an on-scene battle of wills with law enforcement. Save your energies for the courtroom. (And claiming against the government is always tricky so before breaking ground, talk to your admiralty attorney to make sure you’re on the right path.)
Here’s another. Can a passenger sue a vessel owner because the vessel wasn’t seaworthy? Sure, but that’s not the standard of care owed a passenger. Excuse my flippancy, but what I mean is lawsuits get filed all the time and so when a client asks: “Can I get sued?” the answer is almost surely, “yes.” The better question is: “Will I prevail if a lawsuit is filed?” As for the warranty of seaworthiness, it’s only owed to crew. That is, the duty of maintaining a vessel reasonably fit for its intended purpose is only owed to those that can establish they’re crew. This duty amounts to something akin to liability without fault and it’s reserved for those with the special status of serving the ship. Passengers, on the other hand, are simply entitled to a duty of reasonable care.
Say for instance Lt. Fitzroy aboard the H.M.S. Beagle slipped on the ice-covered deck. He’ll assert a breach of the duty of seaworthiness and likely win because a vessel with ice on its deck isn’t in seaworthy condition. When Darwin wracks up his ankle on the same ice patch, his argument will be more difficult. He’ll have to prove the vessel owner breached the duty of reasonable care. In other words, the passenger doesn’t get to short-circuit the argument like the lieutenant does by simply pointing to the ice and Darwin will have a harder hill to climb in establishing the owner was at fault. Remember too, Jones Act claims are for crewmembers only and allow them to sue their employers. Maritime personal injury and death claims are slippery eels and if you don’t have a maritime lawyer aboard early on, it’s easy to run aground.
The maritime law doesn’t always fit neatly like a sail cover over your particular issue, and the fact patterns presented to me aren’t always uniformly flaked like a mainsail on the club lawn. Sure, we admiralty counsel can wish it’d all arrive on our desk ship-shape, but then business might get kind of thin, huh?
This article is provided for your general information, is not legal opinion and should not be relied upon. Always seek legal counsel to understand your rights and remedies.
Underway and making way.
Admiralty attorney John K. Fulweiler, Esq. practices maritime law on the East and Gulf Coasts. As a former partner of a Manhattan maritime firm, John now helms his own practice located in Newport, Rhode Island where he helps individuals and businesses navigate the choppy waters of the maritime law. John can be reached anytime at 1-800-383-MAYDAY (6293) or via e-mail at firstname.lastname@example.org.