maritime law and sailing, oct 2005 windcheck

Windcheck
October 2005


Maritime Law and Sailing
By Tim Akpinar

Reprinted with permission from
Windcheck Magazine - October 2005

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Maritime Law and Sailing
By Tim Akpinar

When I think of maritime law, I tend to visualize container ships unloading cargo in Port
Elizabeth, or tugboats pushing fuel oil barges up the East River. I don’t usually think in terms
of Thursday night races on a Pearson 30. For most pleasure boat sailors, the word “maritime”
suggests vessels of a commercial nature.

However, some of the same maritime law that applies to a 45,000 ton bulk carrier can apply to a
Rhodes 19. As interesting as that parallel may seem, is it relevant to enjoying an afternoon
with your family on Long Island Sound? When you yell “starboard” to your competitors
jockeying for position on the starting line of a race, is that maritime law in action?

The Supreme Court answered “yes” to the question of whether federal courts have admiralty
jurisdiction over pleasure boats. If a vessel is involved in an accident on navigable waters, and
the accident has the potential to disrupt maritime commerce, and it was engaged in traditional
maritime activity, admiralty jurisdiction applies.

Subjecting sailboats to federal admiralty jurisdiction opens the door to the application of a wide
array of maritime laws, some of which seem logical while others may seem arcane. Consider a
maritime law known as limitation of liability. It can be invoked by a defendant to reduce a
claimant’s lawsuit. In a marine casualty, the defendant shipowner may, if certain conditions are
satisfied, limit her liability to the residual value of the vessel and freight pending, if the loss
arose from circumstances outside her privity or knowledge, which loosely speaking, means
outside her control. The greater an owner’s involvement and awareness in the operation of the
vessel, the less likely for something to be deemed outside her “privity or knowledge”.

Picture a vessel and her crew peacefully enjoying sunset cocktails at anchor after a race. The
tranquility is shattered when a speed boat loses control and….perish the thought, crashes
through the transom. In the process, it breaks a few legs and arms. Imagine the insult to injury
of reducing the victims’ lawsuits to the $200 scrap value of the offending speedboat….through
application of limitation of liability. It’s a repugnant notion, but under maritime law, it is a
possibility. But it was never the intention of the original lawmakers that limitation of liability
would find itself being applied in pleasure boat lawsuits.

When the Limitation of Shipowner’s Liability Act of 1851 (46 U.S.C. §§ 181 -196) was enacted,
there were no such things as 45 knot pleasure boats. The purpose of the act was to encourage
merchants and their investors to engage in maritime commerce. The underlying philosophy was
logical at the time. A catastrophic loss such as fire, loss of life, or loss of an expensive cargo had
the potential to make a shipowner liable far beyond the value of his vessel. Therefore, it was
held that if a marine casualty arises from factors outside the control (“privity or knowledge”) of
the shipowner, he could limit liability to the residual value of the ship plus freights pending
(cargo and passenger revenues)

Limitation of liability has arisen in prominent cases. When the liner Titanic sank in 1912, the
owners sought to limit the lawsuits that followed to freights pending plus the residual value of
the Titanic, which after April 15, 1912 was the value of a flotilla of lifeboats. And it became an
issue in the claims against New York City following the October 15, 2003 crash of the Staten
Island Ferry Andrew J. Barberi. The idea of limitation of liability has come under attack as
having outlived its usefulness and legislative intent.

Maritime law has other quirks that can be of interest to the racing or cruising skipper. Unlike
the previous scenario, there are elements of maritime law that make more sense from a
standpoint of general fairness and public policy. One of these involves the use of presumptions.
A fundamental presumption of maritime law is that when a vessel violates a safety standard
governed by statute, it must show that violation of the statute could not have caused the
accident. This is known as the Pennsylvania Rule.

Another fundamental presumption is that when a moving vessel strikes a non-moving vessel or
object, the moving vessel is presumed to be at fault. However, if the stationary vessel or object
was a hazard to navigation, this rebuts the presumption. While this presumption may be
traditionally associated with towboats and barges hitting railroad bridges in brackish inland
rivers, it can apply to the crowded anchorages of Manhasset Bay as well.

A keystone of maritime law is the concept of comparative negligence. Comparative negligence
means that someone is liable only to the extent of their actual fault. This is opposed to
contributory negligence, where any fault on the part of the wrongdoer serves to destroy their
claim in its entirety. Comparative negligence vs. contributory negligence can become an issue if
you sail on inland waters.

Picture this. You have a Laser that you keep on a boat rack in New Rochelle during the
summer season. From what you’ve read so far, you now understand that if you were involved in
an accident on Long Island Sound, the case could fall under admiralty jurisdiction. But let’s say
you take your family on vacation and haul the Laser to a private lake. The lake is in one of the
few states that follow the contributory negligence rule. Since the lake is small, private, and not
realistically viable for commercial transportation, it is not considered “navigable waters”
(remember earlier I mentioned that “navigable waters”, along with “traditional maritime
activity” was a prerequisite of admiralty jurisdiction). If you got into an accident with another
boat on the lake and were partly to blame, the contributory negligence rule could result in
dismissal of your claim.

Salvage is another concept deeply rooted in maritime law. Salvage results if there is a marine
peril, a voluntary act by a salvor (rescuer), and the salvor’s efforts to save persons and property
are successful. With modern towing services, a routine rescue of freeing a boat from a soft
grounding would not be considered an act of traditional salvage. Rather, the services would
typically be billed at an hourly towage rate. However, if the circumstances involved substantial
risk to the rescuer or the need for heavy duty rescue vessels or equipment, the towage effort
could escalate into what would legally be deemed a salvage action.

If you get into a jam and need a little help being pulled off a mud bank, chances are the towing
service is not going to assert a claim for a percentage of your vessel. However, when large ships
are in peril, and there is a potential for a loss of life, environmental destruction, loss of
valuable cargo, the difference between calling something salvage or towage can mean millions
of dollars. Think of the final hours of the Amoco Cadiz, as Amoco and the captain of the
salvage tug Pacific negotiated over the Lloyd’s Open Form, the document that would govern
terms for the rescue operation.

If some elements of maritime law seem oddly suited for modern sailboats, we have to keep in
mind how they arose. A good deal of maritime law evolved to encourage commerce on the high
seas. That was the basic intent of limitation of liability. Before the age of steel hulls and
satellite navigation, going to sea was a perilous venture. Look at the concept of salvage….an
incentive was needed for a rescuer to risk life and limb to save a stricken vessel and crew.
Because some of these laws are so deeply rooted in maritime commerce, they can appear
unusual in the realm of recreational boating.

Attorney Tim Akpinar learned to sail on Blue Jays in Little Neck Bay, and says that one of his best sailing memories is
restoring an O’Day Tempest over twenty years ago. He owns a Pearson 26, and his “dream cruise” would be a week in
the islands of the Aegean Sea between Greece and Turkey.

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