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Staring Upwind: Avoiding Cold-Weather Liabilities

By John K. Fulweiler

On sunny days we play this game, my daughter and I. We’ll crest the top of the bridge to Newport and I’ll ask, “Are the diamonds out?” When the leaves are changing color like now, she’ll answer quickly with a bitter sounding “Nope.” The way it is in the Northeast, as the sun skips along on its summer excursion there’s about eight weeks or so where its angled rays catch the salty water just right and there’s nothing but electric-powered diamonds shining back. With fall in town the diamonds are gone, the waters look bruised blue and the huff and chug of marina machinery is in the air. As you bundle your steed up for the winter, here’s a few maritime legal items worth considering.

There’s a lot of fine print in your life and you’ve got to triage all those terms and conditions. You should, of course, read the entirety of every contract you sign because if you’ve scrawled your name, the court is likely going to hold your Top-Siders to the fire. But let’s assume you’re under the gun and you need to skim a marina’s winter storage contract to find any major pitfalls – where do you look? 

Naturally, I don’t condone this approach, but if you’re going to review a marina contract quickly, start at the bottom. Heck, that’s good advice, in my opinion, with any contract. Like how it is aboard where all the worst stuff lies in the bilge, so it seems go contracts where all the onerous obligations lie at the bottom of an agreement just below the tidal line of your attention span. Short circuit such chicanery by reading from the back, and look for language speaking to the location and manner of resolving disputes. You might want to speak to your admiralty attorney if disputes are to be resolved in a state other than yours or via an arbitration program. An admiralty attorney can give you a brief sense of the seascape of another state’s laws or a particular arbitration program. 

Next, is there a time limit for bringing claims or do you have to give the marina notice of the loss within a certain period of time? If so, take note because these types of terms can turn turtle an otherwise good claim. What about indemnity obligations and liability waivers?  Language in the contract stating that you’re agreeing to defend and hold-harmless the marina in certain situations can be problematic and could create uninsured liabilities. That is, an insurer may not provide coverage for additional liabilities you are assuming by contract – speak to your insurance broker or admiralty attorney. Remember too, in a lot of instances involving maritime contracts where a vendor might not otherwise be allowed to do so, negligence can be waived. That’s right, while intentional and gross negligence likely can’t be waived, the maritime law isn’t troubled by contracts where one party is waiving negligence claims against the other. You should be aware of this fact and again, with an eye on the marine insurer who, in my opinion, can be a fair-weather friend, consider circulating a copy of the storage agreement to your broker.

Finally, my experience with marinas is that some of the conditions they include often grows out of a bad experience. If there’s a term that doesn’t sit right with you or your insurer, speak to the marina about a workaround or an alternative. I’d be surprised if everything is a deal breaker.

If you’re going to be reading this kind of nauseatingly textual treacle, you might as well pull your boat’s insurance policy out too. Take a quick look at whether there’s a lay-up warranty or some similar language requiring your vessel be hauled or otherwise not used during a specific period of time. You need to read the policy carefully to understand your obligations in this area, but for sweet’s sake don’t ignore this language because it often proves a home-run for our fair-weather friends.

And, no doubt, there may be a last ferry ride or two back from your summer camp.  The fine-font printed conditions on the ticket you get when you board a ferry (and a cruise ship, too) are, thanks to a Supreme Court decision, largely enforceable. Thus, when your Prius rolls into the sea or your partner slips on an oily deck, remember that passenger ticket contract. Break it out, right away, and read how much time you have to bring suit, give notice or what have you and make sure you call an admiralty attorney.

I liked sailing with my father. He’d hoot and point at a far off piece of water long before his predicted winds would lift us ahead of the others; a wind reading skill I still struggle to learn. Still, maybe I’ve got that talent when it comes to contracts.  Whatever the case, it never hurts to stare hard upwind.

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 FulweilerAdmiralty 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 john@fulweilerlaw.com.   


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