Know Before You Tow: When Help on the Water Becomes a Salvage Claim⛵Salty Podcast #101

🎙️ Salty Podcast #101: Know Before You Tow  When does accepting help on the water stop being a routine tow and become a salvage claim?

In this episode, Cap’n Tinsley talks with maritime attorney and U.S. Coast Guard-licensed captain John Fulweiler about the surprisingly gray line between towing and salvage.

John explains the three basic elements of a salvage claim—marine peril, voluntary assistance, and success—and why situations involving a disabled boat, dragging anchor, flooding, grounding, or changing conditions can quickly become more complicated than a boater expects.
We also talk about towing memberships, salvage contracts, marine insurance, maritime liens, vessel arrest, how salvage awards are calculated, and what to do if someone makes a salvage claim against your boat.
Tinsley also shares the Bahamas grounding that sent her down this maritime-law rabbit hole, plus another tow where rising water in the bilge raised the question of whether the situation could have crossed into salvage.
One of the biggest surprises: a salvage award is not simply based on time and materials. A relatively short operation can still result in a very substantial demand.
If you own a boat, sail, cruise, fish, or spend serious time on the water, this is an episode worth hearing before you ever need assistance.

Guest: John Fulweiler
SaltWaterLaw.com
john@saltwaterlaw.com
1-800-383-MAYDAY

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Transcript

When a Tow Becomes Salvage

John Fulweiler 0:00

So everything else one could argue is salvage. I'm disabled, I don't have my batteries aren't working, I'm drifting, my anchors dragged, I haven't hit anything yet, but I need some assistance. They have a lien, a maritime lien when they provide salvage services, and they have the right to seize your vessel and arrest it. The unique thing about a salvage award is it's not kind of materials. A salver might be on scene for a couple of hours, but it might be a six-figure salvage award today.

Protect Your Boat and Your Wallet

Capn Tinsley 0:25

If you want to protect your boat and your wallet, you're gonna want to watch it. When does accepting assistance on the water turn into a salvage claim on your boat? We're gonna break down the difference between a routine tow and a salvage situation. What you should ask, what you should avoid signing before accepting help. And what to do if someone makes a claim on your boat. Yes, even involving tow companies. To help us sort it out, my guest today is Maritime Lawyer and U.S. Coast Guard licensed captain John Fulweiler from Rhode Island. This is the Salty Podcast, episode 101. John, welcome and thank you for being here.

John Fulweiler 1:05

Well, thanks for inviting me to be here.

Meet Maritime Attorney John Fulweiler

Capn Tinsley 1:08

Appreciate it. Okay, let's start with the basics. You are not just an attorney, but you also have a background in boating. You're a U.S. Coast Guard licensed captain. And you used to work for a tow company, right?

John Fulweiler 1:20

That's right. We're the salvage company.

Capn Tinsley 1:22

Okay.

John Fulweiler 1:23

This thing should become more errant as we engage in this discussion. But yeah, we did towing and salvage.

Capn Tinsley 1:29

Great. So first tell us a little bit about your boating background and on the water and then your maritime law experience, just to do some qualifiers.

John Fulweiler 1:37

Sure. No, I am a believer in making sure the person you're listening to has the chops to speak about whatever they're talking about. So for me, you know, I spent my younger years in Rhode Island and was always on the water and had a little whaler since I was knee-high. And from there, I went on to drive launch here in Newport. And then I started with a the the nasted towing and salvage industry, which has now become sort of ubiquitous as being sea tow or towboat US. Uh but back then they were more individualized companies, and so I spent oh, five to seven years doing that work. And so, you know, I saw a lot of a lot of things. And in between that, I would work on a little tug out here in Narragansett Bay, and so I feel like I have some chops to discuss this topic. I haven't sailed across the Atlantic like my daughter did, but I still know something about boats.

Capn Tinsley 2:35

And so and then when did the law experience come in? When did you become a lawyer?

John Fulweiler 2:40

So in 98, I graduated from the University of Arkansas, Little Rock, and I went to New York and joined the maritime firm there. Then I became a partner, I became a managing partner. And then, you know, as anyone who's lived in Manhattan probably experiences, I had a child, and I sort of wanted her to have the experience that I had in the coastal region here in Rhode Island. And so we decamped to here, and I opened my office in 2011, 2010, 2011, something like that. And I but now all we do is represent claimants. So, you know, claims against insurance companies for not covering things, personal injury claims for mariners and passengers. We don't represent any insurance companies.

Capn Tinsley 3:23

I saw that on your website. Now I have both when I'm traveling on my boat. I have Seto and Tobat US because they're I found they're not all equal everywhere.

John Fulweiler 3:32

And not a bad idea,

My Bahamas Grounding and Salvage Wake-Up Call

John Fulweiler 3:35

actually. Yeah.

Capn Tinsley 3:35

It doesn't cost that much. So and then what triggered this, the catalyst that made me want to do this interview, I had an event in the Bahamas where my boat all of a sudden got beached and then the waves were pushing it in. And I called Seto, and they said they do have people in the Bahamas that they partner with, and it was going to be $8,000. And but they couldn't get there for five hours, and it was looking not good for my boat, which then they called it later a salvage, and I didn't know what they were talking about. But I had a couple Bahamians come out with two boats, they pulled me off, and then they I couldn't steer. The shaft came out a little bit and was interfering with the steering. I didn't know what was going on, so they towed me to a place, they dove down on it, and the rest is history. I gave them a bunch of cash. But they knew that I was they've done this before. And they were started working me on the ride back to the marina. They said, You know, we saved your boat. And I was like, Uh oh. I don't think a few hundred dollars is gonna do it here. And even after I gave them a generous amount, they said, Is that all? And then someone said, Don't sign anything. And I was like, I didn't sign anything. Oh my god, what's going on? And then I started hearing the other stories in the US, and I was like, I don't know, diddly squat. I need to learn. Other people probably need to learn too, so that's why I reached out to you.

The 3 Requirements for a Salvage Claim

Capn Tinsley 4:54

So I think the the three basics of my little bit of research, the three basics of the qualifications or criteria for salvage claim is marine peril, voluntary assistance, and success. And if that's agreeable to you, can you explain each one?

John Fulweiler 5:15

So, yes, that's an accurate way to describe what you need to make a claim of salvage. And the way to think about this topic is to think about it in two parts. There's the first part, was a salvage service performed? And then the second part, which we'll talk about in a moment, is okay, if one was performed, what is the appropriate value for a salvage award? And focusing on the first part, was a salvage performed. Salvage acquires those three elements. So you have to have a vessel and/or its contents, its tenders in peril. Now that peril can be actual, like being on the beach, or it can be imminent, like a vessel that's broken free of its mooring and is drifting toward a ledge or or a beach or rocks or have you. So, you know, that would satisfy peril. I would submit that peril is is a fairly low threshold to cover. The second is it has to be voluntary, and that's something that you'll never really encounter. What it means is that there was no pre-existing obligation to assist. And an example of this might be let's say there's some older cases that talk about barges in New York Harbor that were routinely moved around. And if one broke free, the concept was, well, you're already under contract to shepherd to curate those barges. So you can't really make a salvage claim because you had a pre-existing obligation. Another example is let's say you went crew aboard. That crew really would have trouble making a salvage claim. It's not that they couldn't, but that they have a pre-existing obligation to assist the best. Right. There are nuances to that, but those are examples of the voluntary element. So we the we're on the speaking element, which is a voluntary. So we have the first one, reapparel, second is voluntary, and then the final one is success. And that can be in whole or in part. And that sort of gives elbow room for the co-solver situation. And so those three elements are what you need to establish a right to make a salvage cloud.

Capn Tinsley 7:15

Okay. And so legally or contractually obligated to perform that service. So if, like CETO, you're a member and they come, that's good, right? That wouldn't create a salvage. But what if CETO is going by and you're not a member and you say, hey, can you help

Towing Memberships vs. Salvage

Capn Tinsley 7:32

me?

John Fulweiler 7:32

Well, let's just pause for a moment. And none of this is legal advice. This is us just having a beer at a bar, as I tell people to call me randomly. Okay, we're just talking general concepts of maritime law. And let's just talk generally without referring to a particular provider. But generally, when it comes to boat-towing memberships or enrollments, whatever they're calling, those are not covering salvage. They may cover some types of things that legally would be called salvage, but for the most part, a salvage event like a grounding on a beach or a coastline is not likely going to be covered under one of these national boat towing providers. And that's why it's important to read their term because they make very clear in their terms that hey, you've paid and you're basically paying to have us run out and assist you in sort of generic situations, the jump start, the engine that's failed, you need to tow back to poor. That's typically cover. The salvage events where you're flooding with seawater, you've dismasty, the conditions are terrible, those generally exceed the terms of those particular policies.

Capn Tinsley 8:48

So, what do you do if some one of those things are happening?

John Fulweiler 8:51

What you do is you focus on what's most important to protect your vessel. And so you can call one of those providers when these national providers they typically will offer salvage services and are experienced in doing, and you worry about what you need to do to get off the coastline or off the reef. And if you have a good policy of marine insurance, you let them deal with it, you know. And that's, I feel, as a personal comment, that marine insurers position their insurance to protect their policy from a salvage claim when, in fact, many insurance policies require boat owners to take all necessary measures to protect their vessel. And I, you know, I hear that marine insurers may tell others not to sign salvage contracts. Well, and we could talk, I don't want to get too over my skis here, but salvage contracts come in different forms. And if you're simply signing a salvage contract that's that's checked as being a pure salvage contract, meaning pure being well, we're gonna figure out what you owe us afterwards, then why wouldn't a vessel owner sign that? I mean, I wouldn't like here. I want this person, this company to help salvage this vessel. And if that's what they're requiring to accomplish that, and I'm not agreeing to a certain number or anything, I don't so when I'm agreeing to arbitrate the claim or what have you.

When a Tow Company Calls It Salvage

John Fulweiler 10:12

All right.

Capn Tinsley 10:12

I've never had one of these companies show up and go, oh, this is a salvage, you know. I guess they'll tell you.

John Fulweiler 10:20

Most times they will tell you. Okay. Now, the exigency, the emergency nature of the event might be such there's just not practical time to pause and tell the owner, we're giving you salvage service. So there's that envelope of exception. But most instances you will find that these providers will say, Look, this is not cover and this is going to be a salvage. And at that point, you know, every factual circumstance is different, but you've got to decide how you want to proceed. Many of them will say, Look, we're not going to perform unless you agree to sign our salvage contract.

Capn Tinsley 10:54

Okay.

John Fulweiler 10:54

As a boat owner myself, I would have no problem signing those contracts. I'm really fine.

Capn Tinsley 10:59

Knowing you might have to get an attorney later.

John Fulweiler 11:02

Well, if you have marine insurance, that should respond, assuming that the you're within your navigation limits, that the cause of the incident wasn't something that might be disclaimed or excluded under your coverage. But assuming in your head, if you do the analysis, look, I got insurance, I'm in my peer coverage period, I'm in the navigation area, you know, then I would have the comfort to know that the insurer's gonna hire a lawyer. Let's okay.

Capn Tinsley 11:28

I didn't even think of that. That's why you're here. That insurance might even take care of a claim.

John Fulweiler 11:35

Many times they do. Okay. You know, my experience is that they regularly do so, and they're regularly accustomed to negotiating these claims with these companies.

Capn Tinsley 11:46

Nice. Okay, that's good news. Okay, success. So you said in part or or in whole.

John Fulweiler 11:52

Right. So that can be a situation where the first salvage entity arrives on scene, provides some initial dewatering efforts, and then a second salver comes, and that salver is closer to your home port where you're going, so they take over. That first salver would still have a co-salvage plane, they because in part they assisted you. Similarly, we could come up with a little factual example of where somewhere gets on scene, they get the water level lowered, you get your engines going, you can continue, you release the salver. Okay, they've accomplished sufficient, a sufficient amount of effort to qualify, one would argue, for a salvage.

What to Ask Your Marine Insurance Company

Capn Tinsley 12:33

Okay, so so when talking to your insurance company, that would be a good question to ask, wouldn't it?

John Fulweiler 12:40

Or is there two things when you have buried insurance? You should ask them when it comes to salvage. The first is do you cover salvage and is there a cap to the salvage?

Capn Tinsley 12:49

Okay.

John Fulweiler 12:49

And second, do you require physical damage to my vessel in order for me to submit a salvage claim? I am aware of certain companies that require or seem to require physical damage before they'll cover a salvage plane. And that doesn't really give you full salvage coverage because again, to go back to the breaking free of a mori, that happens. And and there may be no damage because the salver had prepared and trained its crew, it was on scene before it hit the rocks or whatever, or would have grabbed. And in that case, there likely wouldn't be damage, but there's still gonna be a salvage claim.

Capn Tinsley 13:28

Okay, that's I'm shocked. I really am. I didn't know how how fine the line was, you know. Yes.

Where Boaters Get Into Trouble

Capn Tinsley 13:36

So so where do voters go wrong when they're accepting assistance?

John Fulweiler 13:43

Maybe voters should appreciate what coverage they have. And if they have salvage coverage, maybe they shouldn't be carrying water for their insurance company and they should be focused on what's best for their vests. And I think maybe that would be the way I would approach it. Now, obviously, if you're on the fold with your insurer and they say we're not going to cover you if you sign something, you'll have to bake that in the cake and decide what you want to do. But I'm unaware of those situations arising. And so I think boat owners get very nervous when they hear the word salvage because there seems to be a dark side rumor, as I call it, that when there's salvage rights, they can take your vessel and do all these things. As an attorney, as a lawyer that prosecutes a lot of salvage claims for salvage companies all around the country. No one wants your vote. They want the money, they have a maritime lien when they provide salvage services and they have the right to seize your vessel and arrest it. But that process without getting too law school-ish is something that typically your boat doesn't sit in the yard. Then your insurer would post security or you would post security, your boat would be released again. And that's so far down the typical road of what happens that I feel the dockside rumor that salvage will take my boat is misplaced. I don't feel that's so, and maybe in answer to your question, maybe the singular thing best loaders do wrong is they think that salvers want their boat.

Capn Tinsley 15:17

And are there things that you should or should not do ahead of time, like you know, say the wrong thing over the radio or the paperwork that you sign? Is there anything there that could mess you up later on that you've seen?

John Fulweiler 15:31

Well, you see, much of my perspective is from the salvers position. I think the whatever lessons I've learned that would be both owner-oriented from that experience would be that, you know, I think it's important for a vessel owner to understand that if the salvage is going to be claimed, it's going to be claimed. And so broadcasting a condition that your vessel is in that's not accurate doesn't really advance anything. Because once the salary gets on scene, they will make a determination at that point, given the circumstances as to what they perceive exists, whether it's just going to be an O under one of these national programs, or whether it's going to be a salvage. And so I think the best thing a boat owner could do in a situation involving a perilous condition would be make sure everyone's safe, make sure the boat's the best conditioned the moment that it can be in, contact the Coast Guard and be accurate in describing what's being experienced so that the right resource can assist you.

Disabled Boat or Marine Peril?

Capn Tinsley 16:35

So even if a boat's disabled and that could be just came off its mooring, or the engine's not working, but the sails are working, there's an anchor. Is there any scenario that would that would cause it to be either just disabled or marine peril? Is there a difference? But it could be disabled and marine peril also still applies. Is that right?

John Fulweiler 17:02

Yeah, I think the way to think about it is that if we go back to our two elements, the first being, do I have a salvage claim? And what's the salvage claim? The elements in my probably jaundiced view of things to establish a salvage claim, it's a relatively low threshold. And I know there's some case law out there that says towing could is defined as merely expediting a vessel's voyage. So everything else one could argue is salvage. Now you're circling the gray area, and it's a good area to circle. The gray area where I'm disabled, I don't have my batteries, aren't working, I'm drifting, you know, my anchor's dragged, I haven't hit anything yet, but I need some assistance. Those are gray areas, and whether it's going to be a salvage claim will depend on the overall circumstances, wind conditions, you know, how close you were to the apparel, perhaps a rock ledge or and we'll also turn on the terms, the language of those whatever national program you have. Because I'm aware some of those programs will sort of identify situations that are going to be covered, even though legally you could make a salvage.

Capn Tinsley 18:22

Okay. And can you give us a couple of those scenarios?

John Fulweiler 18:49

I think every scenario is very fact-intensive. What I can say is this I feel sometimes that marine insurers and boat owners spend a lot of time arguing it wasn't a salvage. When maybe their gunpowder would be better spent arguing what the value of that salvage claim is. Because that it might salvage, and maybe we should, if I may, just take a moment to talk about the salvage award, which is that other second moment. Yeah, yeah. So when there's a salvage claim, then you're entitled to a salvage award. And the salvager has to prove up and show

How Salvage Awards Are Calculated

John Fulweiler 19:25

that the salvage award is not a formula for it. It's an analysis based on various factors from a famous Supreme Court case called the Black Wall, and then more recently, the International Convention on Salvage, which is a rather short document. And I would encourage any boat owner to just Google or use your search engine of your choice and find Salcon 89, which is the code name for it, International Salvage, I think eight pages, plain English, but you'll see the factors set out. And there are things like the degree of danger, how probably the salver arrived on scene, you know, were there alternatives available, pollution issues mainly are implicated. So there are factors that go into and are weighted. Each side argues. And then you either have an arbitrator, which is like a judge, but you you've agreed that in this case, Tinsley will be our arbitrator, and she will her ruling be final in the hearts. Yeah. And that's typically what's written in a salvage contract. Instead of court, we're going to go to Kinsley. Sounds like real estate. And the arbitrator or a judge, if you go to federal court, you'd be before a judge because you're not entitled to a jury for these salvage claims, typically. And so you would have a decision that weighed both some arguments and came up with an award. And the award is typically the value of what was saved is an important element. And I would argue, I would, from my experience, the degree of danger and the value of what is saved are the two probably weightiest, in my opinion, elements. And it's not the value at the time, which fakes salvage, it's the value when the salver completes the job. What did the salver bring back? What's the value of the vessel? It's damaged condition when it's brought back to poor. So you might have an $8 million yacht, but after all the damage is only worth when it's delivered safely to Holland, it's only supposed casualty value of only $3 million. So it's the three million that's looked at, not the original value. And I love salvage for that because it's a great incentivizer for the salver to be efficient and good. Because if they do something like the boat across the run, then they're losing value. So that encourages a professional outcome.

Capn Tinsley 21:42

Alright, so from what I'm hearing is if you're active on your boat, it could it's a matter of time where something could happen. Or salvage could be. If you're out there and you're just doing your thing and taking risks, the longer you're out there, the more risks you're taking.

John Fulweiler 22:02

I think that's a fair statement. I would submit that probably 90%, if not better, of what you'll encounter would probably end up being something that may be covered under one of these national programs. But there are situations where you've breached your whole integrity, your Flooding with seawater, you're been dismasted. We go through a litany of different situations where, yeah, the claim probably is a straight salvage claim not covered under one of those programs. And so I think that as you mentioned in the beginning, having a membership with a program is a great way to go. And then I think having a marine insurance policy that respects and provides good coverage for those salvage claims is what should make the boater sleep better at night.

Capn Tinsley 22:54

Okay. I I do have another scenario where I was in the Gulf called Sea Toe because my something happened with my engine and there was water in the building,

Could My Gulf Tow Have Become Salvage?

Capn Tinsley 23:03

it was coming up. And when he started towing me, all of a sudden it was like, whoa, the high water alarm was going off. So he came on the boat and he put a pump in there. Yep. And we made it back. Now that could he have made a salvage claim? Well, yeah. Luckily he did not.

John Fulweiler 23:24

No, it sounds like there was a seawater intrusion because of some issue that had arisen.

Capn Tinsley 23:31

The mixing elbow kind of exploded, and so some water came into the engine room and to the bilge.

John Fulweiler 23:37

So if your pump wasn't, if your old bilge pump wasn't able to keep up with that, that would cross what I again, my perspective, a very low threshold for that first element of peril. And if I was defending you, which you don't do, but I'm not claimants lawyer, but I would argue to you, I would encourage you, let's not fight whether it was a salvage, let's fight the elements. So, what's the award? I mean, the unique thing about a salvage award is it's not time and materials, and I think that throws people. I think it throws people because a

Why a Short Rescue Can Mean a Huge Salvage Demand

John Fulweiler 24:08

salver might be on scene for a couple of hours, but it might be a six-figure salvage award demand. And so people are like, wait a minute, you're getting paid $50,000 an hour. And there's just so much case law that plainly states it is not a time and materials form for a salvage award. It's what should be the award should be such that it would encourage a salver to perform that event again. You have to think about it. Not triple-A. I mean, you're asking someone else to come out to risk their own equipment, to get inside your vessel's interior spaces, to do these things, which as experienced sailors, we'd all be like, oh, but but still, there's still risk there. And if it's strange, you come out. And the and the maritime law wants to already, it wants to encourage this behavior. And but costs a lot to train these folks to insure them, to equip these vessels, to have them on standby so that they can be on scene within a relatively quick amount of time. Now, your Bahamas situation is a little different, but that's a rather remote location. I can tell you domestically, I'm always impressed on how quickly these companies get on scene, and that costs money to have that boat sitting in some port ready to go.

Capn Tinsley 25:22

So yeah, and well, he was gonna be five hours, so I couldn't use the partner with the company, the national, but it was that it was two locals with boats in the Bahamas, and you clearly you could see they've done this before. This is a side hustle for him, you know? And he I could tell how he started working me. But so what is in the thought of the tow captain? What is he thinking? Is he thinking I'm not gonna push the salvage thing because I'm I'm a local person and I'm I need the business and I don't want to give us a bad reputation? Does that ever go through his mind?

John Fulweiler 25:58

I don't know.

Capn Tinsley 25:59

To push the envelope, you know.

John Fulweiler 26:01

I think salvers, I think these businesses, you know, perform a lot of straight towage for vessels

How Tow and Salvage Companies Make the Call

John Fulweiler 26:10

under the umbrella of these national programs. But I think that in order to maintain the level of efficiency and and professional service that they do, they have to analyze the situation, much like an umpire calls balls and strikes. And I think they have to go out and just look at the facts and make a call. And then if it's a salvage and it fits into that formula, then they pursue the salvage. And I think that to do otherwise would be unjust for the company, the entity itself. Like then you're not really you're not you're not justifying respecting what the business is.

Capn Tinsley 26:51

It's part of the business plan.

John Fulweiler 26:53

I think that's a fair thing to say, yeah. I think it has to be, or to provide that professional level of efficient service. I think voters sometimes, and this is my opinion, but I think sometimes boaters don't really ever take a moment to think, wait a minute, this is not a utility, it's not an EMS or a fire department, and yet they're out there. There are few services like that. Try calling a plumber on a Saturday afternoon's. I mean, you know, you're you're not gonna get that kind of response tip, you know. Sure.

Capn Tinsley 27:21

Yeah, because we do expect them to show up. What 20 minutes? Can you get here faster?

John Fulweiler 27:26

Right. So it it's you're right, it's curious, Nar.

Capn Tinsley 27:30

What do you do if you get a salvage claim? And how do you are you made aware of it?

John Fulweiler 27:38

If you have a

What to Do If You Receive a Salvage Claim

John Fulweiler 27:38

salvage claim, I would say it's fair that you probably are making a claim with your insurance company for the attended damage to your best. You've probably run aground, so there's gonna be an open claim. So if you get a salvage claim, and again, I'm coming at this from prosecutors. My typical thought process is and how I would just pass the claim on to my insurance. Part of I'm already open to claim.

Capn Tinsley 28:02

So you represent the tow companies or people that are making the claim, right?

John Fulweiler 28:06

And we call yeah, salvage companies, so but yeah, salvage and tow like company. So we represent those entities, and I think typically those when a salvage claim is made, it's passed onward to the insurer to adjust, negotiate with the salver, and the salver will like any claimant would make a full value. So, for instance, heaven forbid, but if you suffered an injury, you wouldn't file a lawsuit seeking the full value of your claim, but you would probably ultimately resolve it for less, respecting various factors. And I think salvers do the same thing, they analyze the facts, they look at the law, they'll make a full value claim. That doesn't mean that the insurer might not come and say, Well, wait a minute, it's this and that. Well, there's so risk moving forward, you know, and and so then it would get resolved at a lesser amount.

Capn Tinsley 29:25

So when you're representing the salvage company, you're talking with the insurance attorney and it's hashed out. And in most cases, does the insurance pay it?

John Fulweiler 29:37

My experience, the files we have in this office, yes, insurers typically pay these claims. And so many of these insurers often deal with the marine adjusters themselves, are experienced with self, have a good understanding of staff, and so are adept at arguing the other side, clearly, articulately, so that you're in a position where you're talking to someone with sophisticated knowledge, and you can both find common ground typically and try to resolve these things. Sometimes they don't get results, sometimes there's just a difference of opinion, you know. Sometimes the marine insurers don't appreciate some circumstances which to you and your client make the claim more valuable, and then the insurer respects. And in those cases, you would then go to arbitration or you'd go to federal court and resolve.

Capn Tinsley 30:20

So you get a notification in the mail from the salvage company or an attorney, right? And then there's a lien.

John Fulweiler 30:28

The lien, so in admirative law, in a general comment, yeah. Whenever someone supplies services or materials to your vessel at the owner's request or knowledge, a lien automatically arises. It's not like a shore side where you have to go file it. There's a lien

Maritime Liens and Vessel Arrest

John Fulweiler 30:43

that just it's like a fender and it just hooks onto the vessel. Sounds invisible in some respects because you don't have to file it. The marriage the salver has a lien automatically, and the letter that's being sent will explain what was done and will set out the amount and how it was calculated. And that can be a friction point for the owner because the owner's like, oh, they were only there for two hours, they only did this. That's fine. But I, you know, when you do get owners that call me, I give it to your insurer. That's you already have an open claim.

Capn Tinsley 31:16

Let the insurer cancel you though after the end of the policy.

John Fulweiler 31:21

But you already got an open claim in most instances. So I find, and this is a personal observation, I find over my many years of legal practice, insurers have their insurers doing a lot of work with them sometimes on all fronts. And I just sometimes think to myself, you and I mean if I I'm touching with you, if if I was in that situation, I mean the insurer what happened. This is what they did. I don't think I'd be an advocate for trying not to pay a vendor.

Capn Tinsley 31:53

I'd think in real estate, there's vendor lien and they get filed with the county. Right. That's not the same thing with in this case. So I wonder if it can ever get missed. Like I sell the boat and nobody, there's no place to file those for some of the research.

John Fulweiler 32:11

So that is a that is a scary aspect of buying and selling vessels. There can be hidden liens, it's worthy of another podcast. And there are a couple of ways if you were purchasing a vessel to sort of protect yourself. If it's a documented, for instance,

Hidden Liens When Buying or Selling a Boat

John Fulweiler 32:28

you could inquire with the National Vessel Documentation Center. And for $29, which is their agency fee, you could order the abstractive title and the certificate of documentation. With the latter, you could check to make sure that the person selling it is the person that is identified on that certificate of documentation. And then with the form of the abstractive title, if someone has filed a notice of claim of lien, it'll show up on that abstract. But it's a way for a marine lien holder to put the world on notice that they're holding a lien against this vessel. But it only works with documented vessels. Undocumented vessel, I think it varies state to state. Some state, I have a vague understanding, may allow you to put a notice of your lien on their registry, but that that's that exceeds my knowledge of them.

Capn Tinsley 33:16

Okay, in Alabama, I believe we do not have titles on boats, but we do have registrations.

John Fulweiler 33:22

Right.

Capn Tinsley 33:23

So you can do that as well. Yeah. Put it on the registration or the official documentation.

John Fulweiler 33:29

And your sales documents should always make sure that they have appropriate wording. You purchase a sale agreement so that you're going to be indemnified by the owner if there's any lien that comes. Now, I always worry about indemnity, which is the idea that someone else will protect you and pay a claim, basically. I always worry because those indemnities are only as good as the person or company giving them. So if you buy a boat from Tommy and Tommy disappears, then that great language you have in your purchase auxiliary would really not work a lot because Tommy's into the wind.

Capn Tinsley 34:01

So to speak. Okay, I do have a question back here that I didn't ask you is um fascinated by maritime law. The difference between maritime law and law and land law, uh I think maritime law is very old. Can you tell us anything about that?

John Fulweiler 34:19

That any interesting

Maritime Law vs. Laws on Land

John Fulweiler 34:20

so let's start with something. I thought maritime law and admiration law. Space a hundred years ago, I think admiring law meant there was where maritime one of them was more regulatory, like if you practice that, it's more regulation. They're universally used those terms now. Maritime law is a unique set of procedures, rules, and and case law that has has arisen over the centuries and applies when there's admiralty jurisdiction. So a vessel in navigation, to keep it simple, on a navigable body of water, is most likely subject to admiralty jurisdiction, which triggers maritime law apply. If you're in an in a little lake, a little, let's just reduce it to a pond, so I'm 100% certain you're on a on, probably no admiralty jurisdiction. Even if you're driving your little whaler around this pond, it's probably no admiral's jurisdiction, so state law would apply. But and then when it's a maritime case and there's admiral jurisdiction, you can file in federal court because federal court is like a nightclub. I always tell people you have to be on the list, you have to have a specific reason to be in federal court. Anyone basically go to state, but federal court, you've got to have what one thing's on the list is a amnity claim, maritime claim. You can go right into federal court with that. But that doesn't mean a state court can't adjudicate meaning rule on maritime issues applying maritime law. It just means that you can't arrest a vessel of state court, you have to do that at vote. I don't want to get too law schoolish, but that's basically it. And the takeaway is this if something happens to your boat on a navigable body of water, there's likely admin of the jurisdiction. And that gives you certain rules and procedures in case law that for the vessel owner can be very beneficial. There's something called the Limitation of Liability Act, and that act allows a vessel owner to sometimes protect themselves from claims or limit their liability up to the value of the vessel after the incident. It's a strong shield against claims. You need

Limitation of Liability and Federal Court

John Fulweiler 36:33

an experienced maritime lawyer, and now I'm making a sales pitch, to fight the limitation of liability act claims, because the defenses, because those will be raised. And if you're a great state lawyer, you can really trip into those into problems because those limitation of liability acts, it's sort of like, and other maritime lawyers will throw things in for saying this, but it's kind of like bankruptcy in a sense, meaning that all claims now have to be filed in the federal court when that defense is raised in a petition. And even if you have a statute of limitation that might be years out, if you don't file your claim within this new period, it's gone, arguably. So it's just uh it's a hornet's nest. And we're very good at getting around those defense. We're very good at getting around those defenses, but again, it's when maritime law applies, that's a defense a vessel order might have under the right circumstances. It might be very useful.

Capn Tinsley 37:27

Okay, so statute of limitation.

John Fulweiler 37:29

So that is that different in all areas, or is it if it's in the navigable body of water, then it's but typically if federal maritime law applies, there's basically generally speaking, you have three years to bring a personal injury lawsuit, and you have two years to bring a salvage claim. And that there are factors that might change that. If state law is implicated, then you'd have a state law statute of limitations if there's no maritime law involved. And if a petition to limit liability, like we were discussing, that that defense is raised, then the court will issue an order saying essentially you've got to bring your plane net. And that's very helpful. So I remember like a ferry incident. Let's say there's a ferry incident that many people were injured. Well, the ferry arm can go into federal court and file a petition to limit liability, and the court will issue an order requiring all claimants to file their claim within a certain period of time.

Capn Tinsley 38:23

I'm thinking of the Staten Island ferry that hit and injured a bunch of people.

John Fulweiler 38:29

And there was, I understand my recollection is it was a limitation action there. It's very helpful to the defendant and their insurer because rather than dealing with claims that piecemeal arise in different jurisdictions over whatever the statutory period might be, this petition requires everyone file them within a certain period of time. And it's usually a couple of months or something.

Capn Tinsley 38:49

Instead of like three years, let's go ahead and get it over with.

John Fulweiler 38:54

And so it's called a concursus, is the a concursus of claims is the lectokon that's used to explain that. But when I was a defense lawyer back in the day, because I did that for about 10 years, we love those things because it it's a great product to sell a potential client. Like, look, you're a fairy just had this incident, hire us, we can help you here, file this petition, we get all this claims in right away, we can do all this. But they need to be respected, but you can defeat. And we originally do.

Capn Tinsley 39:23

It's almost like no news is good news on claims, but not really. You want to go in and get it done. So with the recreational, like me and my scenario, could something come from the Bahamas in the next three years?

John Fulweiler 39:38

So that that's going to implicate trying to give anybody any any ideas, but so that'll

Could My Bahamas Helpers Still Make a Claim?

John Fulweiler 39:45

implicate a foreign law. Like just well, little I understand, and talking loosely, let's just assume Bahamian law applies. If they're a signatory to this to the International Convention on Salvage, then they might make a claim based on that. They could hire a U.S. lawyer, they could or a Bahamian lawyer to chase that. You know, there there could be things that would arise out of that.

Capn Tinsley 40:07

But now what if they accepted money? That would be I mean already paid them, so could they come back and say, oh, we want more?

John Fulweiler 40:18

I always tell clients anyone can file a suit and make a claim. The question is, would you ultimately prevail? And it sounds like you certainly have some ammunition to prevail, but whether or not that's sufficient to stop a claim being filed, I don't know.

Capn Tinsley 40:35

I mean, they'd have to hire attorneys, and that kind of stops a lot of people, right? And it's a different different country. Correct. But it's still a Yeah, right. If you pay them at the time, does that cut off anything like, okay, you agreed to this, and then we all went our own separate ways?

John Fulweiler 40:51

Could they well, speaking hypothetically, it sounds like your understanding was that was the consideration or the remuneration to resolve whatever services they'd provided. That doesn't mean that you couldn't, even from a law school perspective, like a bunch of law school students, couldn't come up with some arguments, probably sufficient to justify filing a claim. But, you know, I think in that situation, you may have been able to came to the writing saying for the services you provide, I'm paying you this side here. Again, though, which I did. Nothing's bulletproof. You know, it's like any law, right? Would you start doing that? I mean, maybe your on-scene behavior allowed the situation to just dissolve of its own accord as opposed to starting to formalize it, and then those you might have changed the the tenor of everything. And so there's no right or wrong way to go about it. I I do think that if someone is getting salvage services and then pays a certain amount, they ought to make sure in some fashion that amount is the remuneration for the services end of store.

Capn Tinsley 42:10

Record it.

John Fulweiler 42:12

But again, I think you have to just go with what the feel of the moment is and what's you know it's been. But you know, a good maritime lawyer is not a bad thing to know. I get calls all hours. I'm always happy to take calls and just about what things look like. And even if I'm not giving specific legal advice, I'm happy to unpack things and give you some issue spotting to help an owner make a decision as what is best for them.

Capn Tinsley 42:38

You said you represent the salvage companies mostly and not the other way around. So do you recommend other attorneys that specialize in that?

John Fulweiler 42:45

You can go to the website, the Maritime Law Association in the United States. It allows you to search lawyers who are members of that entity geographically.

Finding a Maritime Attorney

John Fulweiler 42:55

And I think it's fair to say that the overwhelming majority of those members, and I could be wrong with my takeaway, are defense lawyers. And so that would be a good starting point for a vessel owner looking for a lawyer. But again, your insurer is except the claim is going to have a stable of experience lawyers with knowledge of salvage. I always tell folks when you're buying insurance, whether it's property insurance or home, whatever it is, power insurance. I sometimes think the biggest value is the free lawyer.

Capn Tinsley 43:31

That makes sense. Yeah, that makes sense.

John Fulweiler 43:34

That's the real street value.

Capn Tinsley 43:36

Okay. Now, what am I not asking that you would like people to know?

John Fulweiler 43:42

I think the takeaway is that a pound and vessel owner should read their insurance contract. If you get those renewals that come in and they're four pages,

John’s Advice Every Boater Should Know

John Fulweiler 43:54

and you don't have the full policy, you don't know where the full policy is. Ask them for the full policy and read it. And if you have questions, if you don't understand something, send your broker or the insurer an email. I'm not a fan of speaking to insurers on the phone or brokers on the phone. I think it should be something that's communicated in writing or confirmed in writing.

Capn Tinsley 44:14

Makes sense.

John Fulweiler 44:15

Everyone's a clear understanding. Like I'm going to sell here. Is this cover? Oh, yeah, no worries. Well, confirm then and write. So the first thing is read your insurance policy to understand the question in the portal.

Capn Tinsley 44:28

That's what I did before I went to the Bahamas. That's what I covered in the Bahamas. So that's good, good advice.

John Fulweiler 44:35

And then the second thing is to appreciate that salvage is not a scary thing. It's really an interesting concept that we're going to incentivize entity people to go out and help you. And it's not a public utility. I'm unaware of any other paradigm that doesn't. And so when you get a salvage clean letter and you see some number you're you know really upset about, give it to your insurance, they're gonna probably adjust it, they're gonna negotiate like a real estate offer, it's just the first offer, the first number. So I think the insurance policy, don't be afraid of salvage, and then I think you know you have a prudent boater, you know, try hard to be a prudent boater. I think sometimes, as a general comment, you know, we are maybe not as a self-sufficient a group as as maybe we were in the past. And I think that have a spare anchor, understand where you're going, have a paper chart, you know, all the basics that go into sort of the basics of of boating that I think are sometimes lost when you you've got all this electronic wizardry and these you want people on TCU, go across the Atlantic with an iPad. I'm like, oh my god. I and I mean nothing about your situation, drag yank it's totally different, but I just mean generally be a good voter, be a prudent boater who has a little forethought as to what's going on here. So those are my three points that I would say that maybe if there was any takeaway, it's those three points. Good insurance, understand something about salvage, and be a good voter.

Capn Tinsley 46:05

You have the best website domain I've seen. Waterlaw.com. Love it. So this is your opportunity to give yourself a plug on what you do with the services you offer. And where can they people call you on social media?

John Fulweiler and SaltWaterLaw.com

John Fulweiler 46:23

Well, we would be phone number two, which is 1-800-383-May Day. And what we offer are claimant services. And so by that I mean we represent injured mariners, injured passengers, vessel owners that have insurance declined, claims declined. We represent salvage companies. We represent a lot of small marine businesses in their daily sort of contracts and things of that nature. We don't represent insurance companies, and we're not just putting on a captain's cap around here. It's all we do is maritime wealth. All I've done for 20, I'm coming up, I think it's 24. What's well? It's too long.

Capn Tinsley 47:02

98.

John Fulweiler 47:04

And I could well keep doing it. So I enjoy it, and it's something that I appreciate. It's 383 May Day. Okay. That would be better. I like what you offered as the game. And we probably do too much of it, but I'm always happy to just hear someone out about an issue and try to offer them in the let's the language I I propose with sort of as if we're having a beer, not legal advice, as we've done today. It's 1-800-383 may. I keep saying it. So that's and we do have some books on salvage and injury law that the firm has produced, and they're free. And so if anyone ever wants to email me at John at saltwaterlaw.com, I'm always happy to send them a free book. Okay. I think it's on Amazon and eBay for like a dollar or something to cover the postage. But so you can find it there, those as well. And it's John at saltwaterlaw.com.

Capn Tinsley 48:04

The best drill.

John Fulweiler 48:06

Okay. I like your salty abandon of the salty podcast. Those are good uh thank you. I've been able to do this because a lot of talking about anything boating, which is why I'm in this this occupation. So yeah, I enjoyed this and this time and appreciate the invitations.

Capn Tinsley 48:27

The most important question is why don't you have a Rhode Island accent?

John Fulweiler 48:32

I kind of grew up and Rhode Island was where we were sort of summered, and then I I went here for some schooling and such. So I think I'm probably not a true Rhode Island native in the strictest sense of that word.

Capn Tinsley 48:43

Is is it like in

Rhode Island Accents, Local Boating and What’s Next

Capn Tinsley 48:44

Massachusetts? I think the people that live on the coast have the heaviest accent, and the ones that are more inland have less.

John Fulweiler 48:51

I think that's a fair uh takeaway. Yeah, yeah, yeah. My wife's from Arkansas, and everyone says she has an accent, but I can't hear it anymore. So I don't hear it, I don't hear her accents.

Capn Tinsley 49:02

You've got on your website Block Island boat accidents, Newport boat accidents. That's all good info. So you're saying these areas, this is what typically comes up in that area for boat accidents. Is that what you're saying on there?

John Fulweiler 49:16

Yeah, so our website's designed to help someone who might be looking for a maritime lawyer try and find us. We represent claimants all across the country, but you know, we obviously are located in Newport, and we like to try and make sure that if you're in this area, the Northeast area, and you had a boating accident in Long Island or in Westerly or Watch Hill or Oakland Barrings at the top of the bay. We're here and we'd be happy to take your call and at least give you the landscape of what your rights might be and what your options might be, and then you can make a decision how you want to proceed. And we've done well doing it, taking that approach. We're not a billboard attorney, but we've had a steady stream of claimants for many years, which obviously voting can be dangerous and things can arise. And I think that unfortunately, maritime claims are fought very hard in the defense of them. I think it keeps us on our toes, and having seen both sides of the fence gives a unique perspective in that regard.

Capn Tinsley 50:15

All right. Well, thank you so much. I do appreciate your time. And if I think of another topic, like what was the one you were saying would be for another podcast?

John Fulweiler 50:23

Well, we should do a bunch of them. We could do maritime liens.

Capn Tinsley 50:27

We could best practices when say

Future Maritime Law Episodes

Capn Tinsley 50:32

that again because you kind of blipped out there. Best practices.

John Fulweiler 50:35

Best pack practices when contracting with a marina, things to be aware when you have passengers aboard, when passengers might be crew, and whether you have insurance coverage for that. So I'm happy to talk about this and other topics whenever I can you decide you want to need.

Capn Tinsley 50:54

Absolutely. Yes, thank you. Okay. With that, salty banner out.