By John K. Fulweiler, Esq.
I am not a gunslinger. I’m not a hired gun. But, if you’ve suffered an injury or a loss in the maritime setting and want or need someone to remedy the situation, I’m for hire. I won’t win the case for you, but I’ll help you win. You’ll supply the facts and I’ll supply the attention to detail, the organization and the forceful press of argument. And, damn, I’ll put the time in because in this maritime lawyering business, time wins. I’ll be the most prepared. I’ll have exhibits ready to go. It’s not arrogance, but on my side of the marina if you don’t ready yourself for the shootout, no one takes you seriously.
Lately, they’ve been taking me seriously. Still, it’s like being an MMA fighter. The possibility of a beating’s always there, but you get up, train and get back at being the baddest (and only you see the scar tissue winking back from the morning mirror). I enjoy it. I enjoy getting a note of thanks from a client that doesn’t ever write notes. The other day, the mails brought thanks in the form of cigars (maybe from a Communist-leaning island off Florida) and down on the porch there’s an awesome wind chime that another client with a cool vibe and bad boating injury sent me last year. Against this setting, let me help you, the vessel owner, defeat a salvage claim. Here are my five points of attack for you to consider:
First, you never agreed to the salvage service. As a rule (with only a single public policy exception), a vessel owner doesn’t ever need to agree to accept salvage services. That is, salvage services can’t be forced upon you. If you want to sit on that ledge and let the fiberglass grind away, that’s your choice. Remember something though, your insurance policy might have language bearing the title ‘sue and labor’ and requiring you make every effort to preserve your property which might make things on the insurance side sort of sticky if you waved the salvor away.
Second, it wasn’t a salvage. Sure, it’s a shopworn assertion, but why not? A salvage requires your vessel to have been in peril and just because you were flooding with seawater, doesn’t mean you were going to sink, right? Plus, wasn’t your cousin on the water and if the Coast Guard hadn’t answered your Mayday call, I’ll bet he would’ve helped? But here’s the thing: salvage has a pretty low threshold. If the party assisting you can prove your vessel was in a maritime peril (and being aground, taking on water, etc. are classic examples) and that he/she rendered assistance voluntarily (meaning without a pre-existing contract) and that the assistance aided in preventing some danger from overcoming your vessel, that’s probably a salvage.
Third, it’s not worth much. This is actually, seriously now, what I believe to be a vessel owner’s best argument. Assuming salvage services were rendered, attack the amount of the salvage award being sought. Question things like the amount of risk the salvor assumed, the degree of peril to which your vessel was exposed, the time spent and weather and seas. But be prepared for the salvor’s response; they tend to come prepared and don’t like wasting money chasing claims that don’t have value. The salvor may likely show that it took all year and lots of investment in vessels and equipment and training to make it all look as easy as you argue it was. The salvor might share with you how it needed to re-prop his vessel after it struck bottom trying to pass a hawser to you and she might point to other claims she’s prosecuted where the salvage awards were the same or greater than what’s being claimed.
Fourth, it was a tow! Yes, this is the most popular argument so why not raise these colors. I mean, all you needed was a tow off those rocks. It was a tow! It was a tow! It was a tow! That’s the chant to use because a salvage is all about things like tugs and winches and men with beards and, golly, all they did was show up in that small outboard-powered craft and give us a tow clear of these silly rocks. And like the canted cheers of the enthusiastic crowding the pitch, it just might work. I say “might” because the maritime law has this funny definition of a tow. A towing service, the admiralty jurisprudence explains, is the employment of one vessel to expedite the voyage of another. So that there’s a problem, but keep chanting because maybe no one will look up the maritime definition of a tow.
Fifth, I’m a member, Gilligan! Some of the towing and salvage outfits supplying services to the recreational boating community offer towing memberships. I think joining makes sense because the membership provides a certain amount of free towing and, in some instances, lassos what would’ve otherwise been salvage into the towing category by describing, for instance, some events as a “soft grounding.” Read your membership terms and understand what is and what isn’t covered.
I’m covered in green bottom paint. Yeah, I could pay the yard to do it, but it’s a ritual. Maybe someday (if I’m lucky) I’ll be twisted up with old age and I’ll shuffle around while some young buck slathers on the season’s dressing. Until then though, I’ll walk around for the next week spackled in green splatter, catching the odd eye or two and consoling myself with the mantra: I’m a warrior, here to win, no worries.
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.
