By John K. Fulweiler, Esq.
The “Biscayne Bay Boil” is what my daughter renamed the cursed Biscayne Bay chop. We spent four days in late December at the Orange Bowl Regatta in Miami, Florida watching our spawn bronco-bust her Opti through something like 13 races. What a fun event, and hats off to the Coral Reef Yacht Club for their enthusiasm and organization. With luck (and provided, I’m told, the snack bar continues to serve the sine qua non of chicken tenders), we hope to be in attendance next year.
As was on display given the hundreds of dinghy sailors and varying sea conditions, the problem with boating is that the sea bends, depths change, boats collide, winds gust, things sink, tides ebb and, worse still, this wonderful liquid world is generally unforgiving. Admittedly, most of that is also what makes messing around in boats so much fun. But separate the barnacles from the hull, and what every boater will tell you is that at some point a patch of rough water will appear. Here, the guidance of an admiralty attorney can be remarkably helpful in smoothing the seas. The question is: How do you find a lawyer who knows this hoary patch of legal precedent and, more importantly, how do you retain his/her advices without breaking the sea chest?
There are a lot of approaches that will get you safely across the bar of identifying the names of potential admiralty attorneys. Speaking to your local boatyard manager, talking to fellow boat owners, and visiting the Maritime Law Association of the United States’ website will likely yield a school of attorneys from which to choose. When a potential admiralty lawyer is identified, it’s important you ask the right preliminary questions.
First, the admiralty attorney should take the time to speak with you. A harried response to your inquiries is as good a sign as a lighted day marker that trouble may lie ahead. Second, ask what maritime memberships the attorney subscribes to and whether the attorney is a boater. To be clear, there are many good admiralty attorneys who are not boaters, but this author would argue that practical experience is only going to advance the representation. Stated differently, an admiralty attorney who knows his/her way around a boat might be someone you place on the short list as you narrow your search. Third, don’t hesitate to ask the attorney how much of his/her practice is devoted to maritime law. Nowadays, most admiralty attorneys will also engage in some other related areas, such as transportation law, to supplement the maritime practice. Still, if you’re told that less than fifty-percent of the practice is admiralty law, sail on friend, there will be others. Finally, ask the attorney for a citation to a published legal decision or arbitration award in which he/she represented a party. A practicing admiralty attorney should have no problem rattling off a citation which you can write down and subsequently find on the Internet. Take a look at the decision and confirm that it dealt with a “salty” issue. If you’re a recreational boater, you might ask for a citation pertaining to a yacht which will help you discern an admiralty attorney who practices mainly on the commercial side from one who is more accustomed to recreational boating issues.
OK, now that you’ve narrowed your search down to a particular admiralty attorney, give him/her a ring back on the telephone (or arrange an in-person meeting) to talk about your issue. The key here is to lay out all the facts. Don’t skimp on the bad ones! In addition, after laying out the factual seascape, take time to explain the remedy you are seeking. From the attorney’s perspective, success in any legal representation is about obtaining a desired remedy (or as close an approximation as possible) for the client. In addition, the remedy you seek might be unrealistic or contrary to the law, and an admiralty attorney worth his/her salt will typically discuss any bad water with you before having you spend money launching your case.
Most admiralty attorneys will consult with you initially free of charge, but expect to pay for anything more than an initial consultation. Depending on the circumstance, attorneys will charge for their services on an hourly or contingency fee basis. The hourly fee will vary based on a host of factors including geography, law firm size, and the particular issue. From the perspective of a boater seeking the most economical approach, the lowest hourly rate may not ultimately result in the lowest attorneys’ fees, nor should you consider the proposed hourly rate as fixed in stone.
Attorneys are entirely accustomed to bargaining, and you should not tack away from proposing a lower hourly fee. Further, if you’re battling an economic squall, tell your admiralty attorney as much and propose a lower hourly fee for a set period of time or even a flat fee. Contingency fee arrangements whereby the attorney agrees to accept a portion of a recovery as his/her fee are an entirely different type of sea creature and may only be used in certain circumstances. Typically, a contingency fee arrangement is encountered where an admiralty attorney is retained to pursue recovery for personal injuries or property damage. Some admiralty attorneys may propose a blended fee arrangement whereby he/she is paid a reduced hourly fee and is entitled to a reduced contingency fee upon recovery. Whatever the case, you should consider fee negotiations to be a relatively fluid process in which a little assertiveness may result in meaningful savings.
It’s fair to say that when you retain an admiralty attorney you’ve cast the lines aside and started on a voyage, the success and economic efficiencies of which depend on good planning and a tight grasp of the helm.
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 K. Fulweiler, Esq. is a Proctor-in-Admiralty representing individuals and small businesses in maritime matters including personal injury claims throughout the East and Gulf Coasts and with his office in Newport, Rhode Island. He can be reached at 1-800-383-MAYDAY (6293) or firstname.lastname@example.org, or visit his website at saltwaterlaw.com.