Advice Needed on Deliver Capt Issue

BandB · Apr 18, 2014

Hfoster:

I agree to one part of your post and that is get the advice from an attorney.

Now I don't agree with your perception of a Maritime Attorney. They don't just deal with issues covered under "Maritime Laws" but various issues regarding boats and boat ownership, captains and crew. Many are experienced representing both boat owners and captains in a variety of issues.

I spoke to my attorney who was also the one who found us our maritime attorney initially and her stance was that she would immediately refer this to him if it were brought to her. Where there were state specific issues the maritime attorney might come back to her for aid. But a good maritime attorney is more knowledgeable in the responsibilities and reasonable expectations for captain and crew as well as some of the jurisdictional issues involving boats in transit. Also more knowledgeable regarding where to get expert witnesses. Certainly part of this does hinge on the nature of the attorney's practice as with any attorney. But this would be well within the realm of our maritime attorney and his firm's practice.

This is really not an unusual situation. Contracted captain or crew fails to perform to expectation of owner then question of liability and nature of failing to perform.

Maritime attorneys do not just deal with "Maritime Law" but they deal with the entire industry. They deal with disputes with shipyards, crew, freight companies (such as shipping of boats by sea), insurance disputes and much more.

Think of maritime attorneys as industry experts rather than simply dealing in maritime law and expertise in the industry would be helpful in this situation especially due to the brevity of the actual contract. That's where industry standards and expectations come very much into play. That's really what the case is, what is a reasonable expectation of a captain in this specific situation. Emailed my maritime attorney's assistant and asked how many cases of this type do they get a year. Answer was 10 or so involving the exact same issues.

Dougcole · Apr 18, 2014

rwidman said:
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.

Amen. Preach on, Brother.

BandB · Apr 18, 2014

rwidman said:
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.

I agree with you in your distaste of some of the excessive litigation. The purpose should be to be made whole, as it is with insurance. I do believe if it comes to having to go to court sometimes the winner merits something extra for their time and effort and having to go through all of it but not ten times the damages. But then I know very few situations of such punitive damages. Sometimes by juries but often overturned. Normal punitive would be one to three times actual damage, not ten times. Punitive also doesn't often arise from just failing to perform but some type of more extreme negligence or refusal.

Now the OP has mentioned many other things occurred on the trip and they are all quite relevant. Me, personally, I use lawyers to keep me out of the courtroom and have no desire to go into litigation.

psneeld · Apr 18, 2014

BandB said:
Hfoster:

I agree to one part of your post and that is get the advice from an attorney.

Now I don't agree with your perception of a Maritime Attorney. They don't just deal with issues covered under "Maritime Laws" but various issues regarding boats and boat ownership, captains and crew. Many are experienced representing both boat owners and captains in a variety of issues.

I spoke to my attorney who was also the one who found us our maritime attorney initially and her stance was that she would immediately refer this to him if it were brought to her. Where there were state specific issues the maritime attorney might come back to her for aid. But a good maritime attorney is more knowledgeable in the responsibilities and reasonable expectations for captain and crew as well as some of the jurisdictional issues involving boats in transit. Also more knowledgeable regarding where to get expert witnesses. Certainly part of this does hinge on the nature of the attorney's practice as with any attorney. But this would be well within the realm of our maritime attorney and his firm's practice.

This is really not an unusual situation. Contracted captain or crew fails to perform to expectation of owner then question of liability and nature of failing to perform.

Maritime attorneys do not just deal with "Maritime Law" but they deal with the entire industry. They deal with disputes with shipyards, crew, freight companies (such as shipping of boats by sea), insurance disputes and much more.

Think of maritime attorneys as industry experts rather than simply dealing in maritime law and expertise in the industry would be helpful in this situation especially due to the brevity of the actual contract. That's where industry standards and expectations come very much into play. That's really what the case is, what is a reasonable expectation of a captain in this specific situation. Emailed my maritime attorney's assistant and asked how many cases of this type do they get a year. Answer was 10 or so involving the exact same issues.

I agree...In December I did video testimony in a lawsuit against a marine contractor, marina, equipment renter.

The main thrust of the plaintiffs attorney was my participation as a boat captain.

Despite knowing my background in safety and captain experience...they pursured a line of questioning that hit so many dead ends that all the attorneys agreed any further questions had a standing objection. After about 15 minutes of getting no where with me because they wanted speculation on my part and really didn't ask for it that way...they recessed for about 15 minutes and when they resumed, they came at me with NAVRULES questioning...big mistake as again I pointed out their suppositions were ridiculous (like why I didn't have an active lookout when tied to the barge and the barge was tied to the bulkhead...clearly not underway or at anchor)...I didn't say they were ridiculous..I just quoted the NAVRULES close enough to show their lack of understanding the rules.

After a few minutes of the other maritime oriented attorneys snickering...they gave up and ended the video testimony.

Had the other attorneys brought in one that had any maritime background...they could have had what they wanted in several minutes...not an hour and they wouldn't have looked foolish when the video is played to the jury.

In this case with the delivery captain...I could very easily give "expert" testimony for either side I was hired by...the real trick is to have the one "expert witness" that can trump the other and that requires an attorney to get great advice or just know which "expert witness" will do the trick for them.

mattkab · Apr 18, 2014

In my personal opinion, and experience, if you have a problem and decide to involve a lawyer, you now have two problems.

That said, there comes a time when you need to protect yourself, but I think we jump to legal attacks way too quickly. When reasonable minds can't resolve the issue, or when one party is clearly being unreasonable, then give all the money in question to the lawyers and the issue goes away.

(Sorry for the offense to any lawyers on board -- I've just been burned a few times. And I haven't even been divorced!)

BandB · Apr 18, 2014

mattkab said:
In my personal opinion, and experience, if you have a problem and decide to involve a lawyer, you now have two problems.

That said, there comes a time when you need to protect yourself, but I think we jump to legal attacks way too quickly. When reasonable minds can't resolve the issue, or when one party is clearly being unreasonable, then give all the money in question to the lawyers and the issue goes away.

(Sorry for the offense to any lawyers on board -- I've just been burned a few times. And I haven't even been divorced!)

Fact is that litigation is very expensive and almost always a result of failure to take preventative steps up front. Know who you're dealing with. Get good contracts. And if it's not working out then cut ties before it costs you more.

We have great attorney's for business, personal and boating. Our primary attorney doesn't do litigation at all, but that would be done by someone else in the firm. She advises well though. And she doesn't run up costs unnecessarily or without our approval. The day we first engaged her we needed some advice immediately so we would do some things correctly. A friend referred her. She came through with shining colors and we knew she was the one we'd continue to use. She also will charge in small increments. For instance we get a simple contract to sign and we email or even photo text it to her. If she looks and thinks it's fine, she says ok and charges 15 minutes of time. Now if she has to do much more work on it that's different.

There are some very good attorney's. Having a previous career in business I got to deal with several of them. One thing for certain, get a better attorney than the other guy has.

hfoster · Apr 18, 2014

BandB said:
Hfoster:

I agree to one part of your post and that is get the advice from an attorney.

Now I don't agree with your perception of a Maritime Attorney. They don't just deal with issues covered under "Maritime Laws" but various issues regarding boats and boat ownership, captains and crew. Many are experienced representing both boat owners and captains in a variety of issues.

I spoke to my attorney who was also the one who found us our maritime attorney initially and her stance was that she would immediately refer this to him if it were brought to her. Where there were state specific issues the maritime attorney might come back to her for aid. But a good maritime attorney is more knowledgeable in the responsibilities and reasonable expectations for captain and crew as well as some of the jurisdictional issues involving boats in transit. Also more knowledgeable regarding where to get expert witnesses. Certainly part of this does hinge on the nature of the attorney's practice as with any attorney. But this would be well within the realm of our maritime attorney and his firm's practice.

This is really not an unusual situation. Contracted captain or crew fails to perform to expectation of owner then question of liability and nature of failing to perform.

Maritime attorneys do not just deal with "Maritime Law" but they deal with the entire industry. They deal with disputes with shipyards, crew, freight companies (such as shipping of boats by sea), insurance disputes and much more.

Think of maritime attorneys as industry experts rather than simply dealing in maritime law and expertise in the industry would be helpful in this situation especially due to the brevity of the actual contract. That's where industry standards and expectations come very much into play. That's really what the case is, what is a reasonable expectation of a captain in this specific situation. Emailed my maritime attorney's assistant and asked how many cases of this type do they get a year. Answer was 10 or so involving the exact same issues.

I some what agree with on your post, however here is the reasoning behind my post.

If the suit is filed in any other way other than Breach of Contract the Defendant’s Attorney would simply file a motion of Judgment Pleases to the court where upon they would site the Captain had a Contract with the plaintiff which he had agree to.

The Court would than (After the reply motion is filed) would dismiss the claim as a Contractual dispute!

The case is not based in Maritime Law. It is based in Contractual Law due to the Contract. In makes no differences where the damage was done. Land, Sea or Air it is simply a Contractual dispute because both parties signed the Contract.

Could you use a Maritime Attorney, Sure you could, However if that Maritime Attorney does understand Contractual Law he or she is doomed to lose the case due to the fact that court will rule this case a Contractual dispute. So there for, you would need a Contractual Attorney.

Are there Maritime Attorneys that that handle both Maritime and Contractual Law. Sure there are but however in a case like this no argument will be made based on Maritime law so why would you pay for one?
The whole case would be based on what is written in the contract so you would be dealing with Contractual Law!

The law is a funny thing in a lot ways and can be hard to understand at times so you need and Attorney that understands the law that the case is based on.

Happy Cruising

H. Foster

Moonstruck · Apr 18, 2014

BandB said:
There are some very good attorney's. Having a previous career in business I got to deal with several of them. One thing for certain, get a better attorney than the other guy has.

That also applies to expert witnesses. Your witness should be unshakable. I have been hired as expert witness in several construction cases. One case the opposing attorney was a good one with Howard Bakers firm, Baker Donnelson.
He tried his best to discredit me because I was tearing his case to pieces. It got to the point of the judge sending the jury out of the room. The judge then told the attorney that when in private practice he had used me for an expert several times. He told him that if he thought the judge would disqualify his own witness, he needed to take another tactic. The jury came back in, and the case wound up in a few minutes. By the way, that lawyer and I are on friendly terms, and we both get a good laugh about it.

BandB · Apr 18, 2014

hfoster said:
I some what agree with on your post, however here is the reasoning behind my post.

If the suit is filed in any other way other than Breach of Contract the Defendant’s Attorney would simply file a motion of Judgment Pleases to the court where upon they would site the Captain had a Contract with the plaintiff which he had agree to.

The Court would than (After the reply motion is filed) would dismiss the claim as a Contractual dispute!

The case is not based in Maritime Law. It is based in Contractual Law due to the Contract. In makes no differences where the damage was done. Land, Sea or Air it is simply a Contractual dispute because both parties signed the Contract.

Could you use a Maritime Attorney, Sure you could, However if that Maritime Attorney does understand Contractual Law he or she is doomed to lose the case due to the fact that court will rule this case a Contractual dispute. So there for, you would need a Contractual Attorney.

Are there Maritime Attorneys that that handle both Maritime and Contractual Law. Sure there are but however in a case like this no argument will be made based on Maritime law so why would you pay for one?
The whole case would be based on what is written in the contract so you would be dealing with Contractual Law!

The law is a funny thing in a lot ways and can be hard to understand at times so you need and Attorney that understands the law that the case is based on.

Happy Cruising

H. Foster

A maritime attorney is fully capable of filing a breach of contract suit. They do it all the time. That's where you're misunderstanding maritime attorney's. They don't only deal with maritime laws. They deal with all things boating related. The vast majority of their cases have nothing to do with maritime law. They are contract law but in the boating industry. Some are even labor law with owner and crew disputes. But they are industry specific. Look at the practices of some maritime attorneys and you'll see the breadth of what they deal with. But a key element of this case is what the reasonable expectations under the contract were based on industry standards and whether the defendant breached or failed to fulfill that contract and also whether he was negligent in the performance of his duties under the contract. Any lawyer not familiar with boating, captains, deliveries, navigation would be less than ideal in trying to address the issues.

There may be some maritime attorney's who only deal with maritime law, but that is not the way mine are nor the way most in the Fort Lauderdale area are. And the majority of litigation they handle is simple contract with builders, shipyards, repairmen or other service providers such as delivery captains and freight companies and owners as well as insurers. In fact one large area is owners collecting from insurers post accident.

Again, based on my own knowledge as well as asking my primary attorney, if I had this situation I would consult with my maritime attorney. I'm not dealing in total hypothetical but in attorneys I do work with and have on retainer. However, ultimately this is not something I would likely pursue based on the dollar amounts involved.

Jeffrey S · Apr 18, 2014

First, I'm sorry to see any damage done at all. But most importantly, don't let it set a bad tone for your experiences with the boat. It was only $2,500. You're not going to hire an attorney for that kind of claim. Small claims court is probably going to be difficult - the "captain" is likely in another state (otherwise, he should have had local knowledge about that channel). So 1) you'll sue, 2) he won't show up, 3) you'll get your judgement, and 4) you'll never collect. It's just a waste of time.

I think the best course of action is what someone else suggested earlier. Call up the captain and tell him about the damage and cost. Tell him that you think he should split the cost of repairing the rudder and prop. That's pretty reasonable. He must know that he screwed up here. I wouldn't threaten him or act any way other than professional and respectful. He'll either think about it or tell you to go to hell right then.

If he doesn't do the right thing, remember the incident and eventually write a review about him (yeah, that's coming) giving your experiences and facts of the event including your offer to split the damage expense and his refusal.

Also, assuming you have an email contact for him, send him a link to this thread. As far as I can tell, you haven't given the guy's name out (yet). It won't take much for him to realize how easy it would be to have his name here in lights all indexed by Google through a thread this long. He'd be slitting his throat in today's world by not coming to some reasonable conclusion with this.

Finally, I'd consider contacting Judge Judy and the other TV judge shows. If this is a simple contract dispute, I think it would make quite an interesting show and I think the right spin on it could make them interested. I'm serious!

hfoster · Apr 18, 2014

BandB said:
A maritime attorney is fully capable of filing a breach of contract suit. They do it all the time. That's where you're misunderstanding maritime attorney's. They don't only deal with maritime laws. They deal with all things boating related. The vast majority of their cases have nothing to do with maritime law. They are contract law but in the boating industry. Some are even labor law with owner and crew disputes. But they are industry specific. Look at the practices of some maritime attorneys and you'll see the breadth of what they deal with. But a key element of this case is what the reasonable expectations under the contract were based on industry standards and whether the defendant breached or failed to fulfill that contract and also whether he was negligent in the performance of his duties under the contract. Any lawyer not familiar with boating, captains, deliveries, navigation would be less than ideal in trying to address the issues.

There may be some maritime attorney's who only deal with maritime law, but that is not the way mine are nor the way most in the Fort Lauderdale area are. And the majority of litigation they handle is simple contract with builders, shipyards, repairmen or other service providers such as delivery captains and freight companies and owners as well as insurers. In fact one large area is owners collecting from insurers post accident.

Again, based on my own knowledge as well as asking my primary attorney, if I had this situation I would consult with my maritime attorney. I'm not dealing in total hypothetical but in attorneys I do work with and have on retainer. However, ultimately this is not something I would likely pursue based on the dollar amounts involved.

We are both saying the same thing just using different words.

As I stated any attorney that would be handling a case like this would have to understand contract law. If he or she is also a maritime Attorney it does not hurt.

The way I met my wife was over a Contract dispute with Caterpillar over damage done to my vessel when their Techs installed the new power plants as well as some issues over the power plants. In the end by time my wife was done with Cat's Attorneys in the settlement hearing they were crying and waving her off just to settle the whole deal. :rofl:

Yeah, I am stuck with her now! No divorce court for me I would lose me A**. :rofl:

Happy Cruising

H. Foster

rwidman · Apr 18, 2014

Now we've got the internet lawyers involved.

Seeking legal advice on the Internet is a bad idea. And remember the legal advice you get here is worth exactly what you paid for it.

sunchaser · Apr 18, 2014

rwidman said:
Now we've got the internet lawyers involved.

Seeking legal advice on the Internet is a bad idea. And remember the legal advice you get here is worth exactly what you paid for it.

We are all about internet advice on TF. Possibly with as much legal BS time as BB and HF, I found little to fault in their thoughts. The OP has been given several courses of action, it is up to him whether to proceed.

My guess is this Capt has skated on non performance issues before and will do it again. As a very smart person said, there are just as many below average as above average Capts. I'll take it a step further and say the Bell Curve predicts 5% of the Capts don't have both oars in the water and the one wet ore is sculling backwards.

boatdriver47 · Apr 18, 2014

OK I was just following along and minding my business but now that the PHD's are on board I need to say something about the delivery business. I am a full time professional mariner with 40 years at sea, now retired. I do deliveries and on board training as one of my retirement hats. People make mistakes, no doubt the boat owner has made a few. no doubt so has the hired captain. The navigational confusion at the site of the grounding seems considerable. ( If there was doubt why did the owner chose to go below?) Can the OP prove the running gear was not damaged before the grounding? If every delivery captain needs to hire a maritime attorney to write his contracts and carry a few million dollars insurance then be prepared to pay a grand or so a day or do your own deliveries into unknown territory with your rudimentary skill set. Trained Captains with experience go into unfamiliar areas all the time, that's their job. the first time I took a 225 ft. supply boat to Bombay I hadn't been there before but it was right where the charts and pubs said it would be. Normally insurance for a relocation trip is paid for by the boat owner. Lower deductible, captains credentials approved by the insurer a rider for the route and weather etc. Was this discussed beforehand? Bill 1600T Ocean Master

kitelog · Apr 18, 2014

Once again, thanks for all the advice. As I stated before, I am not planning on pursuing action against the capt. as it is just not worth it for the $ involved and its time to move on and enjoy the boat and learn from the experience.

The main thing that rubs me the wrong way on this whole deal is that I paid the Capt. a significant sum of money to do the delivery since I was a new boat owner without what I thought was enough experience. He put us aground because he did not do any route planning. You can blame me for hiring him, not doing the route planning myself, not carrying low insurance limits, etc. This was not discussed and my contract with him did not state these as requirements and his contract implied that he was responsible unless mechanical or weather related. However, if that is how professional captains operate, which I doubt it is for most, I am not impressed.

The other thing that bothers me is that if he would have agreed to split the cost of the repair with me he would still have netted a nice paycheck for the trip. But he will not respond to calls or emails since I got the total for the repairs.

So you can close the books on this one. He is going to skate by on this one other than any ramifications he may face from not having filed an accident report since I have filed one as the owner to fulfil the requirement.

Jeffrey S · Apr 18, 2014

kitelog said:
But he will not respond to calls or emails since I got the total for the repairs.

Remember all of that when it comes time to write a review about the experience. No one else should have to be ignored like that for any reason. There are too many great delivery captains to choose from.

BandB · Apr 18, 2014

Unfortunately, in every profession there are people who do bad jobs and get by with it. We just have to be careful not to attribute the actions or performance of a few to the entire group. I hate the task of finding anyone new to do anything. Can't avoid losses completely with service, just try to minimize it.

rwidman · Apr 18, 2014

The guy made a mistake. One mistake. It's hard to find someone who has never made a mistake and will never make one.

ulysses · Apr 18, 2014

That section of the ICW has always been and will probably continue to be one of those spots that require extreme caution. The entire bay has only one main opening-the ship channel and shoaling has always been evident along with dredged spoil areas. Actually a dredge blew up there once hitting some un (until he hit it) exploded ordnance abandoned by the navy years ago.
I would have questioned going through Colorado River locks on one engine in the 25mph wind conditions. Then I would question whether your depth sounder was working properly. Usually whether I think that I am in the right channel or not if it shows less than a foot or two under me, I tend to slow or stop. If I am in doubt, follow a towboat. At any rate I would consider your damage to be done by too much speed for conditions as are most. An "experienced" capt. should have used all tools including the depth finder.

psneeld · Apr 18, 2014

kitelog said:
Once again, thanks for all the advice. As I stated before, I am not planning on pursuing action against the capt. as it is just not worth it for the $ involved and its time to move on and enjoy the boat and learn from the experience.

The main thing that rubs me the wrong way on this whole deal is that I paid the Capt. a significant sum of money to do the delivery since I was a new boat owner without what I thought was enough experience.
If you don't mind me asking...what was the contact amount...per day, extras, etc...why is it "significant compared to what you may pay a lawyer for 1/2 as many hours?????

He put us aground because he did not do any route planning.
What do you consider route planning??? If the trip was along the ICW...how much planning is really required???? First day out if you have to pull in and make a repair...the whole rest of the trip is "off schedule and tides and weather...etc..etc...

You can blame me for hiring him, not doing the route planning myself, not carrying low insurance limits, etc. This was not discussed and my contract with him did not state these as requirements and his contract implied that he was responsible unless mechanical or weather related. However, if that is how professional captains operate, which I doubt it is for most, I am not impressed.

Be careful...the best captains may NOT be the ones full of legaleze and paperwork and contract standards...why?...because they have never really needed all that to protect themselves for minor stuff...but now that everyone wants their head on a plate...it's becoming time...it's one of the main reasons I don't do deliveries that much and rarely move anyone's boat unless they are a very close friend.

The other thing that bothers me is that if he would have agreed to split the cost of the repair with me he would still have netted a nice paycheck for the trip. But he will not respond to calls or emails since I got the total for the repairs.

Again...what did you pay him???? What you consider a good paycheck often for many good captains is not all that good when you look at a years pay doing the job...and if you WANT extraordinarily professional captains...yes it has to be a full time job and commensurate pay.

So you can close the books on this one. He is going to skate by on this one other than any ramifications he may face from not having filed an accident report since I have filed one as the owner to fulfil the requirement.

He's not required to file anything...you are if you consider the "accident" costing more than $2000 in damages.

I cant side with either person because there's a lot of info I just don't have but neither does anyone else here but you.

Deliveries with owners aboard are sometimes the worst jobs to take. When I had owners aboard..I refused to be considered the captain...I was "the navigator advisor"...it spelled out that I was just there to be asked questions related to getting some place safely. I did it that way just for the very reason that life ain't perfect and getting sued for something negligent is one thing...but getting sued when there's a lot more to the story ain't gonna happen to me if I can avoid it.

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