Oy. The Ocean Race was a big burger of bore. The video content was pretty poor and there wasn’t much editing effort made to create an interesting spectacle but you know what – it’s nobody’s fault. It’s those damn boats with their carriage roofs and Amazonian-humid interior conditions. Who cares if you can safely sail around the world in a protective bubble stopping at what, ten different ports? Boring! On the flip side, tune into the Golden Globe Race. t’s non-stop, it’s aboard boats you, me and most other salt lovers could buy (or could conceive of buying) and it’s retro-sailing at its finest with thirty entrants, sextants only and some hardcore video uploads. If The Ocean Race is the compact disc, the Golden Globe has all the lovely qualities of vinyl. Shame on The Ocean Race, the America’s Cup and all those sailing patrons losing touch with the grace, grit and beauty of a good hull, sails and a star to follow.
That’s been weighing on me; I could’ve gone harder but we’ll leave it there for now and pivot to another shameful bit of the maritime melody – marine insurance.
Buying a policy of marine insurance is about hedging risk. You’re paying short money up front to limit the possibility of a downstream event that may or may not occur. The boat might never sink, a guest might never fall overboard and you might never strike another vessel, but that burble of potential risk is enough of a concern to justify obtaining insurance. And that’s a good bet until your insurer declines a claim.
I’d venture most boaters navigate a lifetime of waters without having to make a claim or having to rely on an insurance policy to protect them from exposure to a big loss. As a result, when a boater does face this kind of situation there’s a certain amount of disbelief. When we pay for something, the thinking usually goes, we sort of expect the contracted-for performance. However, a policy of insurance is a contract and an insurer will sometimes decline coverage. For instance, risks that fall outside the agreed-upon policy language or misrepresentations by the boater at the time of procuring the insurance may be grounds for declining coverage.
What’ll usually happen in these circumstances is that sometime after making a claim, you’ll get a letter from the insurer or its attorney likely quoting large excerpts from your insurance policy and including a statement as to why the insurer is declining (or reserving its right to decline coverage). When this happens, a prudent mariner promptly calls his maritime attorney and seeks legal advice. These can be tough waters to navigate without a knowledgeable pilot, and you want to make sure that what you do following receipt of such a letter doesn’t worsen the situation.
Want to maybe avoid this situation? Consider not treating the surveyor or marine adjuster as your friend ‘cause they’re working for the insurer. Oh yeah, they’ll squeeze your hand and smile and nod and shake their head at you having lost this beautiful boat. Yup, all while asking questions that sound like banter, but are designed to make them look like rockstars. These insurance representatives know the policy and they know what’s covered and what’s not and in my opinion they’re always angling to help the insurer spit the hook. And maybe with major losses, consider having your own surveyor and admiralty lawyer from the get-go. This author wouldn’t ever suffer a large insured loss without having my own surveyor and admiralty lawyer aboard – not a lawyer or surveyor paid for by the insurer, no matter how much they promise me they’re “working for me.” Right. Sure.
Finally, don’t abandon ship should you ever receive a declination letter. There can be alternative arguments as to why coverage exists and, in the case of a reservation letter, an insurer is sometimes simply protecting itself until additional facts can be uncovered. For instance, a while back, we represented the owners of a large yacht that suffered a very bad (and wet) loss in the Caribbean. The insurer declined coverage based on the fact the yacht was towing its tender which, the insurer clambered, was longer than the tender length permitted in the policy. We filed our claim in arbitration (the policy required arbitration instead of litigation) and we hired experts and we learned about all the ways you can measure a vessel from length overall to length on the deck, etc. We knew more about boat measuring than the insurer ever did. Long story short, because the policy didn’t explain what measuring metric to use and because several approaches resulted in measurements within the policy terms, we resolved things in a favorable way (that’s all I’m allowed to say by the terms of the agreed resolution!).
My daughter just started her summer job, which is all about sailing. She texted me the other day a simple message: “I just love to sail, Dad.” I wish that message was the sailing community’s north star – focus on content and sailing and maybe less on competitive racing. ■
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.
