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Old 04-14-2014, 10:15 PM   #1
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Advice Needed on Deliver Capt Issue

I would appreciate advice from forum members on an issue we have with a Captain we hired to assist in bringing our newly purchased Mainship 40 Sedan Bridge to Port Aransas, TX from Tarpon Springs, Fl. My wife and I purchased the boat in Florida and, while I have a decent amount of sailing experience, I did not feel comfortable bringing the boat back via the GICW without someone more experienced aboard. So I researched and found a Captain in Florida with a good reputation and experience with this route and signed a contract with him to do the delivery with me and a friend of mine aboard to assist.

The trip was a challenge from the beginning with mechanical issues, fog, and cold weather but we kept up good spirits and got along very well. On what should have been the final day of the trip things completely fell apart. As we went to go through the West Colorado River Lock the port transmission failed to engage. I will write more about this in another post but sea water had gotten into the transmission and we lost pressure. We discussed it and at the Captain's suggestion we decided to press on and get to Rockport where there is a great Yanmar mechanic.

That day we had a stiff north wind of about 25 mph and air temps of about 40 degrees. All was proceeding fine as we limped on one engine. When we got into Matagorda Bay the chart plotter showed an alternate route to starboard for the intercoastal. Both the chart plotter with new chart software and my iPad with new Navionic charts were not very clear about the proper route to take but the markers followed the alternate route to starboard and did not continue straight ahead in what was marked on both charts as the intercoastal. I questioned the Captain and said that I found it strange that there were no markers anymore marking the intercoastal. He indicated that he was in the right channel and continued on in the unmarked channel. I went down below to get some work done since we had internet coverage. About 20 minutes later we ran aground in the middle of the channel he was following. When I came up to the bridge it was clear that we were surrounded by very shallow water. I had a BoatUS membership and we were able to get pulled off after about an hour and a half of banging off the mud bottom. We limped the boat into Port O'Conner, TX and my wife picked us up. The next morning we dropped the Captain off at the airport for his flight home and we started the process of getting our damaged boat home.

After we got the boat to Rockport we had it hauled and found that the grounding damaged the starboard rudder and port prop. The contract I signed with the Captain stated he was not responsible for any damage due to weather or mechanical issues but IMO neither of these were the cause of the damage. The cause was that he chose to take a route where dredging had been discontinued in 2008 due to continual shoaling. Both Active Captain and the 2014 Waterway Guide that I provided showed this as an area to be avoided and explained that the alternate route should be used.

I am not a litigious person and have never sued anyone in my life but I am considering filing a suit since he is not stepping up to take any responsibility. So my question for the the forum is what would you do in the situation i described? Go after him for the cost of the damage or let it go?

Your thoughts will be greatly appreciated.
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Old 04-14-2014, 10:42 PM   #2
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This is one of those questions that is probably beyond the ability of most of your fellow cruisers to reply. I have two thoughts

1. Seek the council of a Marine Attorney. This might be worth doing no matter what you choose to do.
2. Take a hard look at what you might gain even if you are successful. If he carried no insurance or has few assets, it might not be worth the cost if there is no or little possibility of recovery.

Good luck

Shawn
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Old 04-14-2014, 10:51 PM   #3
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Originally Posted by kitelog View Post
I would appreciate advice from forum members on an issue we have with a Captain we hired to assist in bringing our newly purchased Mainship 40 Sedan Bridge to Port Aransas, TX from Tarpon Springs, Fl. My wife and I purchased the boat in Florida and, while I have a decent amount of sailing experience, I did not feel comfortable bringing the boat back via the GICW without someone more experienced aboard. So I researched and found a Captain in Florida with a good reputation and experience with this route and signed a contract with him to do the delivery with me and a friend of mine aboard to assist.

The trip was a challenge from the beginning with mechanical issues, fog, and cold weather but we kept up good spirits and got along very well. On what should have been the final day of the trip things completely fell apart. As we went to go through the West Colorado River Lock the port transmission failed to engage. I will write more about this in another post but sea water had gotten into the transmission and we lost pressure. We discussed it and at the Captain's suggestion we decided to press on and get to Rockport where there is a great Yanmar mechanic.

That day we had a stiff north wind of about 25 mph and air temps of about 40 degrees. All was proceeding fine as we limped on one engine. When we got into Matagorda Bay the chart plotter showed an alternate route to starboard for the intercoastal. Both the chart plotter with new chart software and my iPad with new Navionic charts were not very clear about the proper route to take but the markers followed the alternate route to starboard and did not continue straight ahead in what was marked on both charts as the intercoastal. I questioned the Captain and said that I found it strange that there were no markers anymore marking the intercoastal. He indicated that he was in the right channel and continued on in the unmarked channel. I went down below to get some work done since we had internet coverage. About 20 minutes later we ran aground in the middle of the channel he was following. When I came up to the bridge it was clear that we were surrounded by very shallow water. I had a BoatUS membership and we were able to get pulled off after about an hour and a half of banging off the mud bottom. We limped the boat into Port O'Conner, TX and my wife picked us up. The next morning we dropped the Captain off at the airport for his flight home and we started the process of getting our damaged boat home.

After we got the boat to Rockport we had it hauled and found that the grounding damaged the starboard rudder and port prop. The contract I signed with the Captain stated he was not responsible for any damage due to weather or mechanical issues but IMO neither of these were the cause of the damage. The cause was that he chose to take a route where dredging had been discontinued in 2008 due to continual shoaling. Both Active Captain and the 2014 Waterway Guide that I provided showed this as an area to be avoided and explained that the alternate route should be used.

I am not a litigious person and have never sued anyone in my life but I am considering filing a suit since he is not stepping up to take any responsibility. So my question for the the forum is what would you do in the situation i described? Go after him for the cost of the damage or let it go?

Your thoughts will be greatly appreciated.
What does the contract say about such damage as this? Does it address anything other than the two things you mentioned? What does it say about disputes? Also how much is the repair cost? And what about insurance? Does your insurance cover or exclude underwater gear? I ask that because many of the Delivery Contracts I've seen make it clear the owner is responsible for insuring the vessel.

I think you'd have a very difficult time prevailing in court as generally you'd have to prove some level of negligence. Did you present the Active Captain and Waterway Guide information to him prior to the accident?

In the future if you encounter the situation you did here, I'd recommend calling the tow company prior to proceeding. They are a great source of current local knowledge.

I do feel for you. I might suggest once you have estimates you discuss with the Captain some sharing of the cost or sharing of the deductible.

Captains do guarantee their best efforts. They don't guarantee results. Running aground is, unfortunately, a normal part of boating, especially when using the ICW's. There are only those who have run aground and those who will. At this point I'm not in the have group but realize some day I will.
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Old 04-14-2014, 10:54 PM   #4
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Originally Posted by MV Salish Lady View Post
This is one of those questions that is probably beyond the ability of most of your fellow cruisers to reply. I have two thoughts

1. Seek the council of a Marine Attorney. This might be worth doing no matter what you choose to do.
2. Take a hard look at what you might gain even if you are successful. If he carried no insurance or has few assets, it might not be worth the cost if there is no or little possibility of recovery.

Good luck

Shawn
Great advice although I might reverse the two. First decide is it even worth a conference with a maritime attorney. Then if you believe it could be, ask one. Most will do an inexpensive conversation to determine if there is something for them to do for you.

I also do encourage having a relationship with a Maritime Attorney. The need really starts prior to a purchase. And the most critical need may arise one day suddenly and require urgency.
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Old 04-14-2014, 11:05 PM   #5
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Are you filing an insurance claim? If so you will be out the deductible and possibly higher rates for a few years. If that is the case the insurance can decide to subrogate against him. You could also sue. That being said, it would probably cost more to sue than the damages recovered.

In my opinion the fault lies with the captain. When you lose the gold triangles and squares off the marker, you are no longer on the ICW period. He should have known that.

This bears out my theory that the end of a long trip is the most dangerous for making mistakes. When you start feeling like the trip is in the bag, look out!

It is just a shame that your delivery trip was marred by this. Hopefully, you will get this straightened out, and have an enjoyable summer.
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Old 04-14-2014, 11:09 PM   #6
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No attorney here- but have been around these situations.

First- Assuming you have insurance, have you contacted them? They may pay the claim and then persue the captain as a subrogation if they see fit.

Second- A bent prop and a bent rudder may not be that expensive to fix. A haul, then getting both straightened. If below your deductible, just pay and go on. Trying to tangle with the lawyers and courts will probably eat more time and money than it is worth, creating stress on your part too.

It depends on the precise wording in the contract you signed with the captain. Most are written such that laymen can actually pick through the words and find out if he has any liability. Read through it carefully.
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Old 04-14-2014, 11:24 PM   #7
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Thanks for the responses. My insurance would cover it but it is less than my deductible. If it was over my deductible I would file a claim and let them subrogate against him. Total repairs were about $2500. I have tried to work reasonably with the Captain but he will not respond to me. I did not show him Active Captain or the Guide as I did not see the information myself until after the grounding. I should have reviewed this leg of the trip the night before like I normally did but I did not do it. So shame on me. However, I would think this would be a routine part of what a professional delivery Captain should and would do for each leg of the trip.

Financially i doubt it is worth pursuing and I lean towards just dropping it. But it does bother me when I paid a decent fee for his services and end up paying for his mistake as well. I expect to have to pay for my own mistakes but not those of a professional captain. One last point is this is not a young guy who is just trying to eke out a living. The captain had sold his business and retired and started doing deliveries.

The contract is a single pager and the only language around damages is that he is not responsible for damage due to weather or mechanical issues. I do believe I have a pretty solid case
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Old 04-14-2014, 11:31 PM   #8
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That sounds like a wise decision. $2500 is "chump-change" compared to a lawyer's fees as well as your time. ... Don't recommend the captain to your friends.
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Old 04-14-2014, 11:34 PM   #9
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"When you lose the gold triangles and squares off the marker, you are no longer on the ICW period. He should have known that."

We didn't just lose the squares and trangles but the markers themselves. They went to starboard in the alternate channel and the channel he took was completely unmarked with any buoys.

I kick myself that I did not raise a bigger stink. I found that being an owner on a captained vessel is tricky. You don't want to be that overbearing Ahole of an owner who is second guessing all the time but then when you don't do it you can end up in a situation like this.
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Old 04-14-2014, 11:42 PM   #10
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I am an attorney, but have no experience with maritime law. Plus, I am new here, so my opinion is not worth much. However, for what it is worth, my instinct is that if the captain runs aground because he is unnecessarily outside of a charted passage, he is at fault. Especially if the soundings on the chart showed shallow water and agreed with the depth shown on your sounder. Under those circumstances, grounding sounds inevitable. If I were the captain, I would pay you the $2,600, or at least the charter fee. If I were you, I would have offered to split it with him. Under the circumstances, with him denying any responsibility, I don't think I would have paid him.

By the way, ask him for a copy of the report he mandatorily filed with the USCG. If he didn't file one, he may really wish to make the whole thing go away.
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Old 04-14-2014, 11:54 PM   #11
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Due to the amount involved, that this would be a prime case for a small claims court. You might want to investigate if it is available to you. Locally, for a small filing fee, a person can file a claim against someone and both parties can represent themselves to the Justice of the Peace.
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Old 04-15-2014, 12:09 AM   #12
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The contract is a single pager and the only language around damages is that he is not responsible for damage due to weather or mechanical issues. I do believe I have a pretty solid case
This also serves as a bit of a reminder to be very diligent in reviewing contracts prior to signing and/or having an attorney do so.

Even determining what state's contract law governs could be an issue. Now I doubt he'd engage attorney's to highly contest either over the amount in question.

Sometimes making a settlement offer, stating clearly that it's an attempt to resolve prior to filing suit, can benefit both parties.

Someone mentioned small claims and it might be a good small claims case but where? Is he in Florida? Are you going to go there and file? Or are you to file in Texas and if you do win, then what are you going to do to actually collect your judgement? Again expense. If you file in Florida, you have expense. If in Texas, just serving him with him in Florida is an added part of it.

And your word and opinion versus his word and opinion aren't likely enough to win. So, are you going to hire an expert to give you an opinion?

It's costly and might be worth one quick conversation with a Maritime Attorney, but by the time you consider the time and expense, I doubt it could be worth it. Understand your time involved in pursuing this is time you'll never recover and time you will not be compensated for.
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Old 04-15-2014, 12:12 AM   #13
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Due to the amount involved, that this would be a prime case for a small claims court. You might want to investigate if it is available to you. Locally, for a small filing fee, a person can file a claim against someone and both parties can represent themselves to the Justice of the Peace.
Depending on the wording of the contract, it will probably define the jurisdiction suits can be brought. My guess would be that his contract would probably define a Florida jurisdiction. In that case travel alone could cost what the case is worth.

Withholding funds from the captain could prove problematic. If he filed a claim against a documented boat, there is a possibility of it being impounded. Probably wouldn't happen in this case, but I have seen it done twice. I think the captain skated, and knew it.
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Old 04-15-2014, 12:38 AM   #14
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The internet is a powerful tool, who is this guy? Oh, before you make that revelation do you have any culpability?
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Old 04-15-2014, 01:42 AM   #15
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The best time to make a stink/claim was before the captain got paid ... a full/partial pay withhold until the boat was surveyed after grounding.

Looks to me that proceeding through the judicial system now is going to cost more in real and emotional capital that it is worth it.

Chalk it up to a lesson learned for next time, and move on ... just MHO.
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Old 04-15-2014, 02:22 AM   #16
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You both know you hired a Captain because you lacked knowledge/experience. He failed to follow a marked channel, you raised an issue, you did not even need to do that. His "exclusion" covers some things, not this; here that is significant.
Does your agreement give him access to your insurance? He`s an authorised driver, you and he should get the benefit of cover. With repair cost less than deductible insurance seems irrelevant.
The real questions: is he worth "powder and shot", will a recovery attempt be uneconomic, even if you recover some $ and costs, due to lawyer fees. Consider the hassle too. If I was you I`d be mad as hell too, but stay as objective as you can on whether it is a worthwhile exercise. If there is an available consumer claim tribunal, try that. Don`t assume he is uninsured.
Don is right, things can go wrong when we relax thinking the hard part is done, I consciously remind myself of that, just surprised it happens to pros too.
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Old 04-15-2014, 06:36 AM   #17
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You are stuck,

Next time find a >captan< with more experience and a smaller ego.
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Old 04-15-2014, 10:03 AM   #18
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$2500 may well be "chump change" to you, but I'm sure it isn't to him. You bought a boat that had a number of issues that weren't repaired prior to the voyage. You should have taken several shakedown cruises first.

Prior to the grounding you both reviewed charts that showed both courses available. Only after the grounding did you do additional research showing the better route.

Sounds to me like you were both worn out. Choosing to go below to work and/or surf the internet wasn't a great idea either.

I have a feeling even going after the money in small claims court would be a crap-shoot. If it were me I would chalk it up to experience.
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Old 04-15-2014, 10:16 AM   #19
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The one additional point that I've seen brought up is the question of whether he has insurance. Did the contract indicate he did or does he have a website claiming to have insurance or making any other claims? Do look at any website he has as claims he makes there and/or guarantees there can become a part of the contractual relationship. Things like "Best Captain around" don't carry weight but things like "Bonded and Insured for your protection" or "Guarantee your satisfaction" sure do.
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Old 04-15-2014, 10:28 AM   #20
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Life is too short. If you proceed with the litigation you are likely to accomplish little at the end of the day. The older I get the more I find myself avoiding situations such as these that breed negativity there seems to be enough of it in the world without a contribution from me. I say get the boat fixed and go boating ...erase the negative incident from your memory and move on. Some good times on the boat will soon have that memory fading into the past as a blip on the radar.
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