Advice Needed on Deliver Capt Issue

[ranger58sb]

Originally Posted by psneeld

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...

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

[sunchaser]

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?

[BandB]

Originally Posted by sunchaser

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?

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.

[psneeld]

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.

[markpierce]

Some groundings seem to be intentional.

[FF]

>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!!!!!!!

[hfoster]

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

[rwidman]

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.

[healhustler]

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.

[sunchaser]

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?

[BandB]

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]

Originally Posted by rwidman

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

The damages were $2,500. That's a big difference. What's this about &quot;punitive damages&quot;? 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]

Originally Posted by rwidman

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]

Originally Posted by BandB

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]

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]

Originally Posted by mattkab

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]

Originally Posted by BandB

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]

Originally Posted by BandB

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]

Originally Posted by hfoster

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]

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!