In a lawsuit’s lifecycle, it breaks ground all Iron Maiden-like with musket fire and skirmishes. But keep moving forward gaining each half league, and defense arguments founder and talk of settlement ensues. And I call that point in a lawsuit where the defending troopers drop their arms, the “angle of vanishing.”
I’ll get to how Naval Architecture refers to and uses the phrase “angle of vanishing,” but let’s heave-to momentarily and consider the maritime law’s treatment of the injured sailor. Bear with me, it’ll be like that 1978-ish television series with James Burke called “Connections” where he “connects” the beat of the African butterfly wing to European coffee houses in the 1400s to the printing press and voilà, the interstate highway. (If you haven’t seen this show, get yourself a remote, a beverage and clear a few evenings because it’ll steal time from anything productive you might’ve planned.)
Anyway, the general maritime law affords an injured seaman with various remedies, two of which include “maintenance” (a daily allowance) and cure (medical care). Some of our commercial seaman clients sail close to the financial shoals. For this reason, the amount and rate of their subsistence allowance (a/k/a maintenance) makes a huge difference in their lives. A decent sum can also mean the difference between a client who’s calm and focusing on recovery and a client who’s scrambling to make ends meet, who’s late for meetings with you and who’s fiscal desperation swamps their claim and your efforts. The problem is vessel interests push tired tropes about food and lodging defining the limits of what’s owed or isn’t owed. If the concept of “maintenance” was viewed as a vessel voyaging between ports, it’s been steered out of the navigable waters and into a marsh. Maintenance appears stuck and in need of a salvor.
The philosophy of our advocacy is all about creating a resonance in support of our principal arguments. Our pleadings, for instance, always refer to our clients by their first name and tell a narrative story that captures the attention of even the most bleary-eyed law clerk. We carry this idea of persistent advocacy into our “maintenance” disputes by largely avoiding reference to the term “maintenance.” For us, it begins with a demand for payment of our client’s right to a “subsistence allowance,” namely because we think this rose by another name, smells sweeter.
Historically, we’re on good ground abandoning the use of the tread-worn term ‘maintenance.’ Among those decisions delving into the legal lineage of this entitlement, Justice Story’s 1823 decision in Harden v. Gordon is the historical waypoint where “maintenance and cure” broke ground and got underway. Justice Story held that “maintenance and cure” was a charge upon a vessel, but in doing so he never used the word “maintenance.” Justice Story wrote in terms of “subsistence” and “allowance,” and his reasoning referred to this right as “additional wages to meet additional expenses.”
Maybe it’s a marketing thing with ‘maintenance’ being an easier sell than “subsistence allowance,” but these latter words are the chestnut from which it all sprang, and it’s this language we try hard to use around here.
And using this original text makes sense because it fits with Justice Story’s intent of leveraging vessel interests into doing the right thing. Plus, using this original text correctly expresses the idea that what’s owed the seaman in addition to cure can be something more than mere food and lodging. That is, the linguistics of ‘subsistence allowance’ are broader and allow you to (properly) drag a greater category of expenses into its shadow. Our clients not only demand rent and food costs, but also payment of their monthly cell phone and internet charges.
When we start out to build a winning case, we spend time and attention to the issue of calculating maintenance. Indeed, we’ve gotten sort of crazed about the topic because of our anecdotal sense of the importance it plays in our outcomes, particularly in the context of serious injuries.
“Cannon to the left of them, cannon to the right of them” is Tennyson’s line and it’s the feeling a plaintiff’s lawyer has at the start of the lawsuit. The plaintiff is burdened with gathering evidence, proving facts and applying the law. At the beginning, the defendants will often fire salvo after salvo at you through motions to dismiss, motions for summary judgment, motions to change venue, etc. If you’re a trooper, you hang in there and beat them back, plugging the holes in the case on weekends and nights.
The angle of vanishing in maritime parlance is the angle from the vertical at which a vessel will no longer stay upright, but will capsize and turn turtle. It’s that point in your vessel’s hull design where it gives up and rolls over. My dream (nay, next) boat (a color copy of her listing is pasted to my left) has a 120-degree angle of vanishing which, I’m told, is impressive.
Around here, when it comes to representing our sailor clients, we don’t have an angle of vanishing. We just plunge into the battery-smoke and never think of riding back.
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 john@saltwaterlaw.com, or visit his website at saltwaterlaw.com.
