Virgil’s poem The Georgics and Paul Theroux’s travelogue, Dark Star Safari, scoff at that scary curling wave capturing your attention, pointing out how it quickly settles into a forgotten, flattened wake. The remnants of famous warriors of the past are furrowed under a farmer’s blade while the school Theroux revisits twenty-years after his Peace Corps stint is a dusty husk of its once thriving self.
That’s a heavy weather helm kickstarting this column, but it fits with something I’ve been noodling: the law changes and what seems important and fixed now, never is. I’m not talking about tickytack changes, but the big rudder movements that begin to move the bow onto a new heading. I see some of this in the maritime law (and the law in general).
The law prides itself on precedent. Earlier decisions yield legal concepts that are the threads of future legal holdings. Still, for all its graciousness toward historical legal holdings IMO most courts (and surely, your opponent) definitely look down at old case law. Yeah, it might be good law meaning it hasn’t been reversed by a later legal ruling, but it’s still IMO viewed somewhat suspiciously. This means something to us maritime practitioners because there’s a lot of good old maritime law that we like to quote. We want the Courts to like our old law. Can’t the reasoning of yore still be sound?
Take a vessel crewmember, for instance. There’s just a ship-ton of case law making clear crewmembers are wards of the Court. “It is well established that seaman are wards of admiralty and have historically been granted significant protections under the law” is how one federal court explained things a year or so ago. And it makes good sense to treat sailors as needing some extra attention when you consider the oddity of working on a vessel whether it be the working conditions (varied, shifting, dangerous), the employer (sometimes hard to discern) or the vessel’s ownership (many times uncertain). I represent crewmembers and the circumstances of their ocean employment often reveal a culture of mistreatment, misguidance and really bad working conditions.
Judicially, the courts originally fashioned two remedies to help sailors: Maintenance & Cure and Unseaworthiness. With Maintenance & Cure, the courts awarded an injured sailor a daily stipend to address his or her living wages (Maintenance) and required a vessel owner pay for the sailor’s medical treatment (Cure). (Actually, not just pay, but coordinate, arrange and make sure the sailor receives adequate medical care.) And the Unseaworthiness obligation required a vessel owner’s diligence in readying the vessel for its ocean passage. Thereafter, in the early 1900s Congress enacted the Jones Act giving sailors a cause of action against their employers (that’s right, there wasn’t any such ability for a sailor to sue an employer before then) and the concept of Unseaworthiness evolved into a non-delegable, absolute duty on the part of the vessel owner – sort of strict-liability like.
These protections don’t tip the scales wildly in favor of the sailor; they level the sea. The vessel owner and its insurer can pretty much avoid legal liability if they complete their obligations. Incidents will happen in any industrial setting, but this office generally doesn’t see claims coming in from well-run and maintained vessels with owners that care about the overall operation. We see claims from the very type of ownership and operation you’d expect to see in the 19th Century, not in an age of pixelated images, digital coins and artificial intelligence.
IMO, the law is always going to be shoved off course by corporate interests. I mean they’re right there at the knee of the legislator, nay, they paid to have the legislator at their knee? Eh, you get what I’m saying. The sailor doesn’t have much of a voice and that worries me. I read a somewhat recent Supreme Court decision involving maritime injury issues and I see the words and phrases they no doubt intend reaching back to use in future decisions that’ll erode a sailor’s rights. And Congress just drew the first blood by amending the Jones Act in a way that seems to carve our aquaculture workers from its protections. Really? I wonder how many Gulf Stream jaunts and golf game circuits it took to slide that language into the legislation. IMO, it was a totally unnecessary carve-out that will create confusion and likely deprive hardworking people from the life vest of maritime law.
And so in flaking the mainsail, I leave you with these truisms: Someone’s always going to have a bigger boat; casinos don’t gamble, they do math; if you’re not running aground, you’re not doing it right; the gun is always loaded; if you’re wondering whether you’re going to make the mark, you probably aren’t; boat speed is the only thing that matters and the maritime law – yeah, it’ll change with the times.
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.
