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Go Back   SailNet Community > General Interest > General Discussion (sailing related) > Sinking of Rule 62
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Topic Review (Newest First)
04-07-2013 02:46 PM
billyruffn
Re: Sinking of Rule 62

Although Wikipedia is not always the best source, here's what they have on the relevant section of the Jones Act (Merchant Marine Act):

Quote:
Seaman's rights

The U.S. Congress adopted the Merchant Marine Act in early June 1920, formerly 46 U.S.C. § 688 and codified on October 6, 2006 as 46 U.S.C. § 30104. The Act formalized the rights of seamen.

It allows injured sailors to make claims and collect from their employers for the negligence of the ship owner, the captain, or fellow members of the crew.[4] It operates simply by extending similar legislation already in place that allowed for recoveries by railroad workers and providing that this legislation also applies to sailors. Its operative provision is found at 46 U.S.C. § 688(a), which provides:


"Any sailor who shall suffer personal injury in the course of his employment may, at his election, maintain an action for damages at law, with the right to trial by jury, and in such action all statutes of the United States modifying or extending the common-law right or remedy in cases of personal injury to railway employees shall apply..."

This allows seamen to bring actions against ship owners based on claims of unseaworthiness or negligence. These are rights not afforded by common international maritime law.

The United States Supreme Court, in the case of Chandris, Inc., v. Latsis, 515 U.S. 347, 115 S.Ct. 2172 (1995), has set a benchmark for determining the status of any employee as a "Jones Act" seaman. Any worker who spends less than 30 percent of his time in the service of a vessel on navigable waters is presumed not to be a seaman under the Jones Act. An action under the Act may be brought either in a U.S. federal court or in a state court. The seaman/plaintiff is entitled to a jury trial, a right which is not afforded in maritime law absent a statute authorizing it.
I'm wondering if the legal pro's who frequent these pages would say about the following two hypothesises:

1/ The reason the plaintiffs are seeking to try this under the Jones Act is that it took place in the territorial waters of a foreign sovereign state and therefore US courts may not have jurisdication, other than under the terms of international maritime law, which as we see above doesn't afford the same rights as US law would.

2/ The plaintiffs will have a tough time overcoming the USSC ruling that:

Quote:
Any worker who spends less than 30 percent of his time in the service of a vessel on navigable waters is presumed not to be a seaman under the Jones Act.
Thoughts anyone?

PS And then I found this on Wiki:
04-06-2013 08:31 AM
jameswilson29
Re: Sinking of Rule 62

Quote:
Originally Posted by Minnewaska View Post
Dig back to torts class and tell me how forming an LLC would make any difference, if you are hired as a delivery skipper and personally cause a loss. An LLC can only limit liability, when it is the defendant. If you are at the helm, you are the defendant, not the LLC. If you have personal assets, which is the variable, you should have them insured, unless you can afford to lose them.
Thank you for recognizing I am not a personal injury lawyer or a business formation lawyer, so I am not expert in this area, but I do deal with creditor-debtor law and debt allocation in divorce. (I don't know what your background is, although sometimes you seem to be quite knowledgeable about law. I would guess you have a law degree, but never practiced outside of serving as in-house counsel.)

I did not write "eliminate" liability, I wrote "reduce" it.

You conduct business through the LLC, so the LLC is the defendant. The classic formation is a holding company and an operating company. The holding company holds any assets, the operating company runs the business. The boat owner signs a written contract with the LLC. The captain is simply an employee of the operating company, as are any crew. Of course, someone may still sue the captain for negligence or intentional torts.

If the captain is wealthy, he has already conveyed his personal assets into an irrevocable trust with spendthrift provisions for estate planning purposes, so no creditors can go after them. Further, the captain has wisely executed a prenuptial agreement and any necessary, subsequent marital agreements with the admiral so he has already allocated the risks of any domestic liabilities, not in an attempt to impoverish or disinherit his spouse, but just to be fair and eliminate a costly divorce. The captain does not really own anything personally, so although he is not "judgment proof", he is "execution proof".

Quote:
Originally Posted by Minnewaska View Post
Of course you do counselor.
04-05-2013 11:29 PM
PalmettoSailor
Re: Sinking of Rule 62

I could accept it a little better if they brought a normal wrongful death suit, but this bogus strategy of stretching a law in place to protect paid professonal crew to cover this case, both rubs me wrong and creates the potential to damage the entire sport of sailing.

We all know the difference between paid crew and offering to partially offset someones expenses, but should this case set a precedent it will have wide reaching detrimental effect.
04-05-2013 10:31 PM
Minnewaska
Re: Sinking of Rule 62

Quote:
Originally Posted by jameswilson29 View Post
I.....I would also guess many of them operate their business through an LLC or other entity to reduce their personal liability
Dig back to torts class and tell me how forming an LLC would make any difference, if you are hired as a delivery skipper and personally cause a loss. An LLC can only limit liability, when it is the defendant. If you are at the helm, you are the defendant, not the LLC. If you have personal assets, which is the variable, you should have them insured, unless you can afford to lose them.

Quote:
I blame the outrageous verdicts on the jurors, not the lawyers..
Of course you do counselor.
04-05-2013 07:08 PM
JonEisberg
Re: Sinking of Rule 62

Quote:
Originally Posted by rockDAWG View Post
I am so surprised that most if not all professional delivery captains do not have professional liability insurance to cover their asses. Even the plumbers and carpenters carry professional liability.
Seems quite a stretch to make such an assumption, based solely upon one or two responses on a sailing forum...

James has it right, and I suspect I've been somewhat indiscreet in being as forthcoming as I was about my own attitude on this... However, the yacht delivery business may not be a particularly good career choice for worrywarts, and I have taken FAR greater risks over the years, than running boats for some of them absent liability protection (grin). And, having earned the bulk of my 'fortune' over 30 years by standing or kneeling within a few meters of F1 and Indy cars traveling at speeds in excess of 200 mph, I've always figured my time spent delivering yachts to be pretty sedate and relaxing, and posing relatively little 'risk', in comparison...

Quote:
Originally Posted by rockDAWG View Post
The biggest problem in the US for this type frivolous lawsuit...
While it's certainly disappointing to hear of this latest development, it's hardly surprising, and I doubt this one rightfully fits into the category of being "frivolous"... Despite the fact that Mr Ross was an 'amateur', his decision that night was every bit as indefensible as that made by Walbridge on the BOUNTY...

There was talk here in the aftermath of RULE 62, that the facts would come out in the "investigation" that would be conducted by the Bahamians... Has anyone seen, or heard of such a report? Hmmm, I didn't think so...

Unfortunately, these are the rules we have long been playing by in America, and the family/estate of Laura Zekoll cannot be entirely faulted for taking advantage of them... And sadly, aventyr60 has it right, in declining to enlist Americans as crew on his boat...
04-05-2013 06:11 PM
rockDAWG
Re: Sinking of Rule 62

JW29, you have a point. I can't see how they can operate with some protection. If I eventually go insane and decide to purchase a boat, it will be under the company name or a new company.

The biggest problem in the US for this type frivolous lawsuit is when you win in court, you loss big time at your pocket. Been there done that, no fu*king fun.
04-05-2013 05:59 PM
Shinook
Re: Sinking of Rule 62

I've had a few people tell me that insurance is a waste of money and I should just tell the marina I have it, without actually acquiring it. I'm blown away at how many people consider that acceptable practice.

There's no way I'd operate any type of vehicle or piece of equipment without some kind of liability insurance. It's far too risky, even if something isn't your fault at all, you can be held liable. In cases like this, a lapse in judgement could cost you significantly.

Quote:
Originally Posted by rockDAWG View Post
We become the nation of blame. So you go out to kill yourself and you can sue the NWS and CG not saving you fast enough. Where the Hell it will end?
I remember a case a few years ago where a guy flew his airplane into a thunderstorm and died in the inevitable crash. The NTSB concluded he was at fault for the accident entirely. The widow sued the aircraft manufacturer, the FAA, the FBO the airplane was based at, and any mechanic that touched the airplane in the last 2 years. I don't know if she was successful, but I do know that no one in her crosshairs came out unscathed. I've seen similar happen several times.

I am actually surprised that similar hasn't happened to boat manufacturers over the years, not that I've seen anyway. Usually in aviation you see the aircraft manufacturer listed in lawsuits for just about every accident.
04-05-2013 05:51 PM
jameswilson29
Re: Sinking of Rule 62

Quote:
Originally Posted by rockDAWG View Post
I posted a question not long ago, asking if any professional delivery captains carry professional liability insurance just like doctors, surgeons, nurses, and etc. I got no response. It appears that most are defer to the boat insurance of the owner. To me either they are very poor and just so uninformed.
I doubt it. I suspect they do not wish to reveal the existence of insurance on a public forum because it would invite lawsuits. I would also guess many of them operate their business through an LLC or other entity to reduce their personal liability and may have employed other asset protection strategies so their personal assets are not at risk.

As a lawyer, I carry professional E&O insurance, although I am not required to. You can check whether an attorney in Virginia has E&O by going to the Virginia State Bar website and look up the attorney's name. (You can also find out whether a lawyer has been disciplined or is in good standing.) We are required to reveal whether we have insurance and the public has a right to know, according to our regulations.

It seems the professional delivery captain business has little, if any, similar regulation.

Quote:
Originally Posted by rockDAWG View Post
We become the nation of blame. So you go out to kill yourself and you can sue the NWS and CG not saving you fast enough. Where the Hell it will end?
I agree. Personal responsibility is eroding in the U.S. More people do see themselves as helpless victims. I blame the outrageous verdicts on the jurors, not the lawyers. Many people seem to have no idea of proportionality in awarding damages, particularly against corporate entities.

However, many on this listserv seem content to avoid or dismiss their potential liabilities as captain of a vessel. They also seem to minimize the fault of the captains when we critique these mishaps, as if the mere fact of going to sea in a vessel absolves one of all responsibility for any mishap.
04-05-2013 04:32 PM
TakeFive
Re: Sinking of Rule 62

Quote:
Originally Posted by chef2sail View Post
...I say let the courts decide the liability in Rule 62 and hope it doesn't get thrown out on some non-related technicality.
I think that it's very interesting that this has made its way to the courts, and not just settled outside court by the insurance company, as are the vast majority of liability cases. My speculation is that this means the plaintiff and his attorney are demanding much more $$$ than the insurance is willing to pay and/or the insurance company believes the Jones Act does not apply.
04-05-2013 04:30 PM
rockDAWG
Re: Sinking of Rule 62

Quote:
Originally Posted by chef2sail View Post
You are right...I don't know what happened. That's why there are courts to decide. Someone evidently thinks that the Captain is liable. I don't know if he is. Time will tell.

If it was my daughter killed and I couldn't get information or thought it was the Captains fault I probably would sue also.

Not sure about the delivery captains insurance question. I recall the one gent with the C&C 40 from NE doesn't believe in it.

Many of us carry insurance. Not just doctors, lawyers etc. In my business owners as well as some managers carry insurance in case you get a whole bunch of people sick through mishandling of food.

I say let the courts decide the liability in Rule 62 and hope it doesn't get thrown out on some non-related technicality.

Dave
I would do the same thing if the owner and other survivor refused to answer or give details of the account. But I assume that the owner must have details to the Laura's family. The situation for Rule 62 is that the owner was inexperienced and suffered prolong fatigued. It is impossible to make the right decision.

Everyone (boater) carries general liability insurance. When sh*t hits the fan, this is not enough, he or she can default to their umbrella insurance. But those general liability insurance does not cover the boat owner for his negligence. If you are rich, they will go after your nest egg.

I am so surprised that most if not all professional delivery captains do not have professional liability insurance to cover their asses. Even the plumbers and carpenters carry professional liability.
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