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Why Buckley Had It Right & Some Thoughts On Crew Wage Penalties

By John K. Fulweiler

You should read William F. Buckley, Jr. Take a dose of saltwater if need be, but his visceral love of sailing is an elixir for what wee fatuousness burrs up the sailing soul. For Bill, the love of the heel and the luff and sheen of spray is what brought him to the water. He didn’t need the newest or fanciest hull, just some sail and stretch of water. It was the voyage and timeless miracle of moving with the wind that proved satisfying, not a lacquered rail’s lusciousness or a photo-shoot styled cockpit. 

I walk through museum-sized houses and pad down lengths of teak deck wondering to myself: “What's the point?” As a youth, people lived. Big houses had scrambles of dogs and big boats were used and knocked around and slathered with salty brine. Nowadays it seems so much is all about the show and less the tell because what adventures and memories do you make aboard a jewelry box? Sure looks good at the dock, but that’s not much of a recollection to swaddle yourself in when the boat’s gone and you’re counting sunsets. 

My point is, sail the stuffing out of your steed. Don’t pine for the larger or newer because it’s still the same wind and punch of sun.  The tide will still set you down and a morning’s sunrise will get you up and maybe your kid’s toothy grin will scar enough neurons to leave a memory you can ride when you’re not out there anymore. Sure beats riding the dock. 

And for my part (aside from sailing), what I’ll do is keep chasing the owners of these floating monoliths who can’t seem to pay their crew. I like that work because the cases are typically quick and neat and resolutions yield prompt justice that's sometimes lost in larger lawsuits. Not paying your crew is incredible to me, but if you’ve spent anytime around big boat boating you'll know about the “big hat, no cattle” malady that seems to afflict some of that crowd.

Swim your way far enough through the federal law, and you’ll come across a statute that provides an escalating penalty when a crewmember isn’t paid in a timely fashion. About a decade ago it had some different and stronger language that made it like a bear trap – sprung open and awaiting an unsuspecting shipping line’s paw. And, indeed, a maritime firm or two came along and sued the ever-loving daylights out of some big companies whose names you might recognize. Wielding the statutory language, they made some big claims and likely got the suits to sit up and murmur, and wouldn’t you know, in 2010 the statute was amended. Among other things, the amended statute capped the recoverable damages in any class action lawsuit which of course makes me think of C&C Music Factory’s sage words of 1991: “Things that make you go hmmm.”

Any-who, the amended wage penalty statute has a provision excluding its application to a “fishing or whaling vessel” as well as to a yacht. Set aside the fact Congress is looking to give a break to whaling vessels, let’s focus on the attempt to exclude yachts. There’s no definition provided for the term “yacht.” From a practical perspective, the exclusion of the weekend sailor and the boat show powerboats probably makes sense, but to exclude vessels we might casually refer to as “yachts,” which carry fulltime crews and calendar extensive chartering schedules, doesn’t. There’s no discernable reason why the crewmember aboard the merchant ship striped in rust should have a better remedy than the crewmember aboard the thirty-million dollar stretch of polished paint with the cute name.

The thing is, an admiralty lawyer with some whip and snap (maybe me) is going to get a ruling clarifying the term “yacht” doesn’t include anything but the recreational sort I sail and motor around these New England waters (or at least I hope that’s the ruling!). There’s an older decision (still this century) that tacked toward accepting the commercial element as the distinction between a yacht and a vessel while a newer decision expressed “misgivings” over such an analysis. Fairness and justice should weigh the scales toward accepting the fact that the luxury behemoths floating around with paid crew and, no doubt, extensive corporate layers where expenses become tax deductions aren’t yachts, but commercial vessels. 

Alright, well maybe this piece was more me standing on the foredeck and shouting than the rest, but I get keyed up over injustice. Don’t mind me though. Leave your desk, skip the networking group and go mix a little tonic with too much gin, pull up the main and pile on the wind.

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.

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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