Advice Needed on Deliver Capt Issue

That's a great attitude (and I believe the right choice)! We hope to be coming through Rockport in June...

Good for you ... looking forward to reading the "case".
Get your boat ready, good times are just around the corner ... enjoy!

If I were still practicing law and could give legal advice it would be to grin and bear it. The costs in time, and travel would exceed the $2,500 even if you were able to get into small clams court. The first complication is where are you going to sue. The amount is too small for federal court and I don't believe there is a maritime exception. You didn't mention where the captain lives. You would likely have to go there to sue and if it is small claims you would have to go there to file the case, then check to see if he was served, then reappear on the first hearing date, then if it is not local to you the Captain would ask for a continuance, so you would have at least another trip. Basically unless the Captain lives near you or you want to spend four months in another state a small claim is not practicable.

If you want a decent chance of recovering your $2,500 try threatening to destroy his professional reputation. You must be careful to avoid libel or slander. You can only state facts which you can clearly prove and you can state your opinion. "In my opinion a professional captain should have known which was the primary channel". I would have someone who know this area of the law review your writeup before you send it to the captain on the pretense that you want to give him the opportunity to challenge any factual issues before the item is posted on the internet.

Note, libel and slander are not covered by your normal household or personal insurance so be careful.

MYTraveler said:

OK, I spoke with a licensed captain friend who explained it to me as follows. If there is an incident satisfying certain criteria (this one does, by virtue of the damage), the accident must be reported. If the licensed captain was operating the vessel at the time (and even if he wasn't under many circumstances) and if the accident isn't reported by him or someone else, then his license is at risk. Apparently the USCG takes non-reporting by captains seriously. But, you may know better.

Click to expand...

I would appreciate if your captain friend could provide his source. I'm licensed and taught licensing and have not heard of that...

I think others may enjoy/benefit from that info.

Even the links I provided to the CFRs don't indicate this or point me in the direction of what would.

I know it's true for commercial vessels operating under most any criteria...but not just a Captain operating a recreational vessel.

kitelog said:

Here is a screen print from Active Captain and I just put hazard marker 3 on the screen print at the point the alternate channel went to starboard (heading west from right to left). We continued straight ahead in the old intercoastal channel until we grounded about 4 miles after this point. If you go to Active Captain and zoom in you can see the markers follow the starboard channel (the one to the north) and a hazard I added marked "Shoaling" where we went aground. There are absolutely no markers after the junction I marked so the triangles and squares had to to on the starboard (north) route were their were markers

Click to expand...

I see that on ActiveCaptain, but my most current NOAA charts don't show that southern track... and the ICW statute mile markers are on the northern track, along with the magenta line. (And note also, AC describes itself as a guidebook, not a nautical chart.)

Edit: I haven't found a way to find the exact date on the e-charts; seems that gets obscured by the seaming process. FWIW, I received notice on 3/10/14 from MaxSea/MapMedia that new charts for Furuno's NN3D and MaxSea's TimeZero were available, so the source charts would have been published by NOAA before then. And P-O-D versions would have had LNMs incorporated along the way, too.

Edit2: I think I did find the revision date, on a MapMedia link from Furuno's chart site. Looks like the Matagorda Bay area raster charts were all updated on 11/30/2013. From the wording, I interpret these as being the dates for NOAA revisions, not the MapMedia compilations (and I guess the MM versions would have been finalized just slightly before 3/10/2014).

You're saying the shoaling you "confirmed" was while on the southern track, and your marker is advising to take the northern track instead, yes?

I don't have a way to post screenshots on this particular forum, but if you like (and if I can remember how to do it), I can send you a screen shot of what the most current NOAA chart that I have looks like.

-Chris

Forgot I could just add pointer to NOAA's on-line chart viewer:

Chart 11316

-Chris

Kitelog,

They never have been able to keep the southern route open for more than a year at a time due to the massive tidal flow from the Matagorda jetties/bay. The Alternate route has been easier to maintain as it is north of the major current flow that sweeps down Matagorda Island.

Over the last 25 years every sailboat I've owned I've run aground at least once in that shoaling area around Bird Island..!!! Most memorable was when a tow boat with 3 doubles rammed his nose into the bank and went broadside directly in front of a 90' shrimp boat, who also went aground in an avoidance maneuver. I was behind him in a sailboat with full sails up, and of course, I didn't have roller furling on that old boat .... so ol' fat boy had to dash on deck to drop sails in 20kt winds with an inexperienced (but cute) crew at the helm. Naturally, we went aground on the lee side of the ICW, about 200' behind the shrimper. I thought for sure one of those steel tubs were going to crush my plastic butt as they yawed sided to side getting loose from the suction of that wonderful Matagorda mud. My Spanish isn't very good, but I think the shrimper answered my frantic radio hail with a chuckle and "Si..I tink I see you back dare!" Anyhooo... The tow Captain was nice enough to hold back long enough for me to float an anchor across the ICW and kedge off the lee bank and get out of his way before he got underway again.

All that said.....any event on the water that you survive is better than a day in the office (or courthouse). Write your delivery Captain a non-threatening, fact-based letter explaining your contention, copy of your repair bill deductible, and ask him to do the right thing for both of your benefit. As we say here in the great Republic of Texas: your horse will load up in the trailer better with a handful of sweet feed, than with a twitch in his nose!

ranger42c said:

Forgot I could just add pointer to NOAA's on-line chart viewer:

Chart 11316

-Chris

Click to expand...

Good job Chris...the ones I uploaded just this late fall still have the magenta and old route marked.

It's a bit out of my way thankfully...have to update soon...

Greysailor: Thanks for your honest sharing of the experience in that ridiculous shoaling area, which is better than any assessment. There are simply some areas that defy even the most critical scrutiny, and I guess that's one of them. One day on the ICW coming south from Tittusville, FL, I was maybe third or forth in line following a 50' or so sailboat through a draw in a particularly narrow re-entry to the channel. We were pretty packed together as there were quite a few behind us also. Suddenly at about 6 knots, the sailboat in front grounded and nose-dived into a full broadside across the channel. With another trawler (and a stiff breeze) right on my tail, all I could do was to pick one side or the other, which I did, and I was never so thankful for my 3'2" draft as in that moment. We threw up some mud going around his bow sprit, but it gave the boats behind enough room to maneuver. The trawler behind us (might have been a 49 DeFever) who saw us accelerate around the bow sprit may have seen the mud flying and chose to take the other side. As we were particularly focused on getting back into the center of the channel, we didn't see his effort fail, but he was apparently stuck, perpendicular to the sailboat maybe 8 ft. or so from the stern when we finally got a chance to look back. I don't know what the sailboat's draft was, but he was dead center in the channel. At least in my case, I didn't have to run for the bank.

I'm going to chime in here as well. I've been into court on civil stuff twice in my life, once when I was sued following a car accident where I was at fault and once when I sued a guy who didn't do the work I paid him to do on my boat, to the tune of about $3,000. Though I "won" both times, afterwards I felt like there was no shower long enough or hot enough to ever make me feel clean again. The civil side of our legal system doesn't really serve anyone except for its own spawn. I can't imagine a situation short of some huge catastrophe that would make me do that again. Did you talk to the captain afterwards? It sounds to me like he did a really good job under tough weather and mechanical circumstances right up until the grounding, where he was at fault. Maybe you can work something out without going to court, who knows?

This was a very interesting thread for me. Love that this forum can surprise like this.

Now, an honest question.

I would have the same reservations as the OP -- new, or new-to-me boat... likely bigger than anything else I've owned.... long trip over unfamiliar water... hiring someone to get my boat safely to her home port sounds like a reasonable response.

But if a hired delivery captain, at the helm, runs a boat aground... He apparently has every legal right to simply walk away? Well then what good is hiring that captain?

Should I (we) simply take our chances and make a best effort on our own delivery? Because if we run aground -- well, it's the same yard bill, but you've still saved the captain's fee...

Most cases I see captains hired is when there is a time constraint on the new owners part. If you can budget in a bunch of extra time I think you would be best served building up confidence to bringing it back on your own, for example stay at the local boat yard where you purchased and take out on extended lengths to shake down and get use to the new vessel, when ready just start going.

There are no guarantees that you will run aground just once on a delivery. I was at a yard on Pellitier Creek in Morehead City while they were doing running gear work because a boat had been run aground at Swansboro. It was a 46 Bertram headed for NJ. When I came back to check work on my boat, the same Bertram was back in again having run aground just below the Atlantic Beach bridge maybe 3 miles away. When I came back the next week to pick my boat up, he was in again having run aground just past Gallants Channel. That's about another 3 or 4 miles progress. I don't know what happened after that. The owner was delivering, but should have paid a captain. Life is a crap shoot.

Sounds like he needs a different hobby:

Moonstruck said:

There are no guarantees that you will run aground just once on a delivery. I was at a yard on Pellitier Creek in Morehead City while they were doing running gear work because a boat had been run aground at Swansboro. It was a 46 Bertram headed for NJ. When I came back to check work on my boat, the same Bertram was back in again having run aground just below the Atlantic Beach bridge maybe 3 miles away. When I came back the next week to pick my boat up, he was in again having run aground just past Gallants Channel. That's about another 3 or 4 miles progress. I don't know what happened after that. The owner was delivering, but should have paid a captain. Life is a crap shoot.

Click to expand...

Marlinmike said:

Most cases I see captains hired is when there is a time constraint on the new owners part. If you can budget in a bunch of extra time I think you would be best served building up confidence to bringing it back on your own, for example stay at the local boat yard where you purchased and take out on extended lengths to shake down and get use to the new vessel, when ready just start going.

Click to expand...

Exactly. I think this is the lesson I've learned from this thread. But then I look at the chart that got posted above and think to myself it really would be nice to have some local knowledge before going in there...

Hiring a captain to deliver a boat when the owner won't be aboard, for whatever reason, is a completely different story too.

mattkab said:

This was a very interesting thread for me. Love that this forum can surprise like this.

Now, an honest question.

I would have the same reservations as the OP -- new, or new-to-me boat... likely bigger than anything else I've owned.... long trip over unfamiliar water... hiring someone to get my boat safely to her home port sounds like a reasonable response.

But if a hired delivery captain, at the helm, runs a boat aground... He apparently has every legal right to simply walk away? Well then what good is hiring that captain?

Should I (we) simply take our chances and make a best effort on our own delivery? Because if we run aground -- well, it's the same yard bill, but you've still saved the captain's fee...

Click to expand...

You hire a plumber or a HVAC person, or you take your car for repairs, or many other things we all do regularly and the service isn't right. Plumber leaves a mess after charging $600 and now you have to get another plumber who points out the things the first did wrong. Does the first plumber just walk away?

Well, you can report to Better Business Bureau or post reviews on Yelp or Google. But are you likely to ever see the $600 again or even part of it? No. Are you going to sue? Get another plumber to testify?

Many times when our choices don't turn out to be the right person, we have no reasonable recourse that doesn't just add to our misery. I've never sued, never been sued, hope to never do either. The lessons I've learned are to be much more selective and careful up front. Deal with those I know do good work, but also I know respond appropriately to problems and complaints.

One of the key factors here than slipped by a bit was the OP pointed out later that there were other problems with this captain along the way. That changes my thoughts, that it wasn't perhaps a good captain making a bad mistake but a not so good captain making another mistake. To his credit, the OP recognizes some things he could have done better himself. But ultimately, because the OP has shown himself to be fair and balanced, I suspect his selection of Captain wasn't the best.

Half the captains out there are below average. Just like all professions. I want my doctor and my lawyer in the top group, not the bottom. Selfish that way, someone else can take the bad ones. Same with Captains.

There are many professional delivery captains who do it regularly and have extensive lists of references. They deliver for builders. They deliver for brokers. They have businesses, fully credentialed. But there are also captains who deliver because they don't have jobs or other work. Do it, not by choice, but at cut rates often due to their lack of good reputations. I know quite a few captains very well. Most, even of those who do boat management rather than being assigned to a yacht, wouldn't have time for this delivery.

One other thing I'd point out. Many delivery captains will not do it with owners or others aboard. They'll bring their own crew if needed. They'll do long runs to get there as quickly as possible. I wouldn't use one of them probably, too obsessive over keeping an eye on things. But I'd probably use a regular captain and do it as a trip. That would cost significantly more too.

But ultimately people often do bad jobs and bad work and we end up stuck with the cost of it. Some industries have horrible reputations and I feel for the good ones in those industries. Look at the service records of big box computer stores or of moving companies. Look at products like Nuwave being sold by the ton on infomercials and elderly women shocked when the $99 plus all the freebies end up costing $260 by the time they reach her. Look at the scams run daily which are far worse than just bad performance.

But seldom does the legal system work well for resolving these unless you end up on People's Court, Judge Mathis, or Judge Judy and get an appearance pool from which the winner is paid. Even small claims which is the best of the system isn't so great for most people who work. Let's see, filing fee, time to go file. Then take a day off from work to go to court. Then, if you win, try to perfect the judgement and try to collect after they don't pay. More costs. And right as you're catching up to them, they file bankruptcy and now you're tossed in the pool of people not getting their money.

Arbitration is written into many contracts as the means of resolving a dispute but that by no means comes free either.

The biggest protection other than good selection that we have is not to pay until after performance. But when it's work on your home or your car or your boat withholding payment gets dangerous too. For instance, the worst auto repair shops are always the best in terms of getting you to sign contracts giving them liens and always very expert and experienced in enforcing those liens. They know the system and use it effectively.

I do believe in well written contracts, and the use of lawyers for them, although I do instruct my lawyers not to turn it into a major project but just address the major issues. However, the contract only really gives you legal standing. It doesn't keep bad service from happening and it won't make up for that.

mattkab said:

But then I look at the chart that got posted above and think to myself it really would be nice to have some local knowledge before going in there... .

Click to expand...

Absolutely and good boat captains, hired or owners, learn to seek that knowledge. Once I found myself confused, I would have held up a bit and called the tow company. Sometimes its a marina near. Sometimes it's talking to other boaters and captains.

mattkab said:

T

Should I (we) simply take our chances and make a best effort on our own delivery? Because if we run aground -- well, it's the same yard bill, but you've still saved the captain's fee...

Click to expand...

There are excellent captains who greatly reduce your probability of issues. Also, on many newly owned boats, problems develop as did on this one, and the boat only makes it through the trip because of Captain's knowledge and ability.

BandB said:

There are excellent captains who greatly reduce your probability of issues. Also, on many newly owned boats, problems develop as did on this one, and the boat only makes it through the trip because of Captain's knowledge and ability.

Click to expand...

Yeah, there is this as well. I still consider myself an inexperienced boater, even after having owned 4 different "real" boats, and another handful of dinghys and canoes over the past 15 years. Probably always will, even after a trip to Alaska or Mexico.

BandB said:

Half the captains out there are below average. Just like all professions. I want my doctor and my lawyer in the top group, not the bottom. Selfish that way, someone else can take the bad ones. Same with Captains

Click to expand...

Very true.

Apparently there are no easy answers? I'm getting old.

mattkab said:

Apparently there are no easy answers? I'm getting old.

Click to expand...

Is old the age at which we figure out there are no easy answers?

psneeld said:

Good job Chris...the ones I uploaded just this late fall still have the magenta and old route marked.

It's a bit out of my way thankfully...have to update soon...

Click to expand...

It was a fluke for me, actually... given that it's sorta out of my way -- by a LOT -- too.

I just routinely keep my East and Gulf Coast e-charts updated, it happened to be time to do that recently, and the description of this trip/route was intriguing so I decided to have a look.

Didn't realize I'd find only one channel on the more current charts, especially since I dunno squat about the area down there. Oh, wait, I read a Louis L'Amour western about the area once

-Chris

Although a bit of thread creep, here is the question - at what point is a delivery Capt needed?

Here is my story; two years ago I was about to close on a larger vessel. It was agreed possession would not take place until the vessel was delivered from San Diego to the PNW with me and one other crew assisting the top notch Capt. The Capt had made the journey about 20 times, delivered similar vessels world wide and was responsible to the PO with me paying the Capt costs but the PO's insurance covering the vessel until closing occurred. Unfortunately an 11th hour glitch killed the deal.

It would seem that unless the Capt is schooled in the vessel and knows the waters, he is not the right guy. This forces the owner to do some homework but why turn your vessel over to a stranger with unknown duty specific credentials for a mission the owner may perform ultimately better?

sunchaser said:

Although a bit of thread creep, here is the question - at what point is a delivery Capt needed?

Here is my story; two years ago I was about to close on a larger vessel. It was agreed possession would not take place until the vessel was delivered from San Diego to the PNW with me and one other crew assisting the top notch Capt. The Capt had made the journey about 20 times, delivered similar vessels world wide and was responsible to the PO with me paying the Capt costs but the PO's insurance covering the vessel until closing occurred. Unfortunately an 11th hour glitch killed the deal.

It would seem that unless the Capt is schooled in the vessel and knows the waters, he is not the right guy. This forces the owner to do some homework but why turn your vessel over to a stranger with unknown duty specific credentials for a mission the owner may perform ultimately better?

Click to expand...

Three reasons. First, you don't have the time right then. Second, a good captain with knowledge of the area will be more knowledgeable and experienced than you. Third, captain might have more mechanical experience in the event of problems.

Now, if you're comfortable and have the time, then fine to go without. Certainly the wrong captain doesn't help things. But there are many excellent delivery captains available if one is needed. Just have to find the right one.

Never hire a captain....hire a great person/worker who has a capt license.

A captain doesn't have to be experienced in an area to still be better than the average recreational boater...it's why he/she became a captain for hopefully. By the nature of the job they know what to look for and what to research.

Some Capts are just capts...some are also decent techs and mechs....they can get a cruise going or keep it that way with less muss and fuss than waiting for unknown help to show up.

Capt resume's are worthless to a point....if you call a bunch of previous owner's and get their input...plus if you are good with people and can get inside the ccapt's head...that's where you get what you pay for.

unfortunately people new to the game of big boating are usually stuck unless they hire from one of the bigger capt providers with a good history.

Some groundings seem to be intentional.

>Never hire a captain....hire a great person/worker who has a capt license.<

A small capt license is given away with just a paper test.

No demonstration of competence , even walking down a dock, is required.

Caviat emptar!!!!!!!

The more my wife and I talked about this post the more I felt I needed to reply to it.
No I am not an Attorney, however my wife holds a PhD and a Master’s Degree in Criminal Justice and is a licensed JD in 4 States.

For the life of us, we cannot understand why some people are saying to talk to a Maritime Attorney. This is not a Maritime case! No Maritime Attorney is needed here.

This is a clear case of Breach of Contract under the Reasonable Expectations laws!
If the Poster’s statements in his post are fact than the said Captain is in Breach of Contract due to the fact that the underline damages spelled out did not cover grounding of the vessel damages.


When the Poster entered into the Contract with said Captain his reasons were due to his lack of skills to do it himself. Therefore he hired a licensed Captain to deliver his vessel so therefore the Poster had a Reasonable Expectations that the licensed Captain could and would deliver his Vessel undamaged and safely which the Captain did not which leads to the Breach of Contract!

If this case were to be filed in court, the court would be looking at this suit as Breach of Contract case not a Maritime law case.


The court would look to see if the Contract did state that the Captain was not liable for any
grounding. If that is the case, than the Poster is S. O. L. in his lawsuit.


If there is no wording in the Contract about grounding the Captain’s liability is not only limited to the damage done to the vessel but the Captain would be also liable for punitive damages as well as all legal fees thus making this lawsuit in liable damages greater than $25,000.

That would mean any judgment lien in the lawsuit would more than likely up held by a said State by an out of State’s Court ruling because the sum of the lien is greater than $25,000.
It makes no difference what the contract states about out of States lawsuits, the States Laws agreement act would overrule the Contract and enforce any ruling by an out of State Court!

The best Advice that can be given to anyone in a case like this is to talk to an Attorney!

Happy Cruising
H. Foster

How did this get to be about $25,000?

The damages were $2,500. That's a big difference. What's this about "punitive damages"? Why does anyone need to be punished for making a mistake?

It would be nice if the OP were reimbursed for the damage to his boat and it would be fair. It would be pretty unfair to try to sue the captain for more than the damage that was incurred.

Turn things around for a minute. Did you ever make a mistake in your life? Do you think you should have been punished for making that mistake?

It is attitude such as yours that are the reason the McDonalds coffee cup warns that coffee may be hot. That a bottle of cooking oil warns that cooking oil can catch fire if overheated.

A reasonable and lucid point. Still, it seems to me that in the judgment of "reasonable expectations" as you pointed out, and given that the Captain under contract esentually made a "wrong turn" that led to the grounding, the judgment to determine that reasonable expectations had been met would be more qualified from an Attorney that was familiar with that element of a Professional Captain under contract, or at least in the view of the Court, able to make a qualified complaint. Of course, I could be wrong about that as well. Great discussion though.

Don't get mad, get even. It is only chump change for the OP but maybe not the next victim. Who is the Capt in question? Remember all the silent souls regarding Bounty's skipper?