By John K. Fulweiler
I can’t remember who said, “I can’t control the wind, but I can adjust the sail,” but I’ve always liked that sentiment because it fits what I do. As a maritime lawyer who got here because he liked being out there, a lot of what I do is help folks with the set of their sails. From craggy maritime legal issue to stubborn insurer, I answer, explain and, sometimes litigate a way to clear water. And with 15 years of maritime law under this keel, I’ve got a good feel for where trouble lies. Sailboat racing is chock-a- block full of thorny maritime legal issues and it’s worth letting me highlight two of them before the sails are loaded, crew found, and rigging tuned.
Long ago memories of race committee meetings still burn brightly. As a young kid, it was my first opportunity to defend or assert a position. Sometimes held in a sail locker dripping saltwater on oiled floors, or, sometimes under the halogen glare of a more formal proceeding, they were always stuffed with tension and angst and I remember heated exchanges. You probably have your own experiences with such meetings, but I’ll bet you never knew that their outcomes can sometimes profoundly impact subsequent civil litigation. Indeed, some admiralty courts have held that the committee’s factual rulings are binding on a lawsuit arising out of the incident. That is, if the race committee found you were sailing on port tack and failed to give way, the court may accept the committee’s factual rulings as final, meaning you don’t get a second chance to explain what really happened! This isn’t the case in every instance, but it’s worth knowing this issue exists and if you’re involved in a racing incident with the potential for a lawsuit because of damages or injuries, you might want to call your admiralty attorney tout suite before heading into the protest meeting. Better yet, you might want to chat up your admiralty attorney before the race to learn whether the circumstances of the specific race could give rise to such a situation.
My youth wasn’t only protest meetings, and I also crewed on local sailboats. Hired by distant owners to keep their weekend sailing steeds polished and ready, I got a lot of time on the rail alongside an assortment of folks (read “racing crew”) eager to be aboard. The maritime law, however, would’ve likely made me stand aside from the rest of the racing crew because of my regular duties aboard the vessel and because I was getting paid. Bi-weekly, usually in the sloppy scrawl of a harried executive, I’d receive my summer salary and when coupled with my regular duties aboard the vessel I was likely a Jones Act sailor entitled to the warm embrace of the admiralty court.
That is, when analyzing the duties owed a person aboard a vessel, the maritime law looks at the person’s standing. A Jones Act sailor is entitled to, among other things, a seaworthy vessel and owners are expected to treat passengers with reasonable care. As the owner of a sailboat plunging around a racecourse, that distinction should give you the kind of analytical pause you reserve for judging whether you’ll make the mark on this tack. You should consider carefully whether anyone aboard your vessel qualifies as a crewmember entitled to the maritime law’s protections. For good measure, speak with your insurance broker and admiralty attorney to learn your legal obligations and to make certain your insurance coverage protects you from claims arising under the Jones Act and its salty brethren, such as claims for maintenance and cure and unseaworthiness.
Simply participating in a sailboat race may not, by itself, change an owner’s obligation to the vessel’s voluntary racing crew aboard for weekend fun. I would speculate that in a lot of weekend sailing incidences a court would find that the volunteer crew are merely passengers. Still, whether someone is a passenger or crewmember is a highly fact-specific inquiry and it’s the sort of thing that leads to admiralty litigation. In fact, there are cases in which an individual who seems like a passenger is deemed a Jones Act sailor because of the unique factual circumstances. And despite my earlier anecdote, in some instances courts have found an individual to be a crewmember entitled to the maritime law’s protections even though they were not getting paid!
None of this, of course, should dissuade you from burying the rail in pursuit of the prize, but it should warrant giving some thought to these issues as you might any potential risk, be it a capsize, man overboard or what have you. In the end though, and perhaps like life itself, it’s not what you’ll encounter so much as how you adjust your sails to make it through.
This article is provided for your general information and is not legal opinion. Always seek legal counsel to understand your rights and remedies.
Underway and making way.
Admiralty 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 firstname.lastname@example.org.