Habits are a funny thing. You’ve got decent habits, like a black coffee with two sugars and a float plan with a fuel reserve. And then they’re the bad habits like those Marlboro Reds, wearing your COVID mask under your nose, and open water trips with a single outboard and no float plan. Sometimes a mariner’s innocent habits can lead to disaster. Yup, your nautical patterns might chart a course straight onto the legal shoals, making it worthwhile to survey the whip and whirl of your boating practices. And like most surveys, while we can’t speak to every habit, we can start you thinking about how your conduct might contribute to a future legal shipwreck.

Whether it’s a vehicle or a vessel, some of us like to lean on the throttle. It’s a speed habit that pushes you through an intersection on an orange light and gooses you out of the channel with a broad wake. (I always get tickled when I pull up to the red light right behind the chowder-head who cut me off doing ninety a half-mile earlier!) But on the water, you going fast and throwing a wake that causes damage gives rise to strict liability – that means fault without having to prove negligence. I like bringing wake damage lawsuits because they are powerfully simple, boiling down to showing your boat threw a wake and it damaged my client’s property. (“How’d they prove it,” you ask? Through eye-witness testimony, testimony as to your habit of gunning it out of the harbor, the fuel dock’s video camera, etc.)

Boating for most of us is an escape from the humdrum and a visceral return to something close to uncharted territory – with apologies to Horace Greeley: “Go West sailing, young man.” However, some sailors take this sense of liberté too far. For instance, leaving your marine radio at home or keeping it off may be contrary to federal regulations requiring certain sized vessels be equipped with and monitor VHF channel 16 while underway. Likewise, under the admiralty law this kind of blind boating can cause you all sorts of trouble in the event of a collision. So as much as you like to treat Saturday afternoons aboard the boat like an oyster to its shell, you should always take care that you’re maintaining a proper lookout.

With a nod toward the far end of the bad habits scale, pulling up another’s lobster traps, taking the wrong size or too many of a fish catch or hauling off stones and coral from some beaches can result in stiff criminal penalties. Worse still, under certain circumstances there’s the potential of losing your vessel under a civil asset seizure proceeding. These are nautical habits equivalent to speeding through town with an open beer and an unfiltered cigarette, particularly so when the weathered lobsterman catches you pilfering his crustaceans.

Chatting with your buddies on marine distress channels may be convenient (“Hey, it’s the channel that always comes up when I turn the radio on.”), but it’s also likely prohibited by various regulations. While you’ll want to check the regulations yourself, outside of hailing another vessel, working communications must generally be moved to channels designated for this sort of fishing-hole gossip.

Anchoring without lights or outside a designated anchoring zone, pumping the holding tank in coastal waters, heaving cups and cans over the rail (“crab condos, right?”), and sloppy fueling that splashes seaward are also some of the many habits that can run afoul of federal and state regulations and can impose unwanted evidentiary burdens under the admiralty law. These habits are like turning out of the channel early; you might get away with it for years and then the circumstances will align and you’ll rip out an outdrive and ruin the weekend. Plus, and to be blunt, we’re all trying to share the same ocean resource (the “commons”) and these particular habits crumb it up with a selfishness unbecoming of a true mariner.

They’re other bad habits that have us nautical wonks shaking our fists. Running with your fenders out or keeping an unlit ensign up after sunset, probably won’t offend the admiralty law, but it might offend your fellow boater’s sensibilities. What you need to remember is that no matter your vessel’s size, you are its master and that title carries with it the weight of a very long maritime tradition. And so the next time you must go down to the sea again, take care to avoid a legal shipwreck by leaving your bad habits back in port.

And so, with summer nearly here and a pandemic nearly awash in vaccine, I say: “[u]p with life. Stamp out the small and large indignities. Leave everyone to make it without pressure. Down with hurting. Lower the standard of living. Do without plastics. Smash the servo-mechanisms. Stop grabbing. Snuff the breeze and hug the kids. Love all a love. Hate all hate.” (MacDonald, John D.; A Tan and Sandy Silence. Fawcett Publ., 1971) (You like Stephen King or Lee Child? They both credit MacDonald as being “the” author that inspired them.)

Underway and making way. ■

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.

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 john@saltwaterlaw.com, or visit his website at saltwaterlaw.com.

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