November 21, 2009
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Maritime Boat Contracts
Look For These Phrases Before You Sign on the Dotted Line

Let's face it: contracts are boring. There's no plot or any character development to keep you turning the pages, and more often than not it reads like a confused sea, with choppy sentences, strange words and a pension for repetition.

Attorneys get paid to beat their way through such prose, and you should never sign a contract without giving it a thorough reading. Still, even after diligent study, you can be left with a nagging feeling that you don't know what is and isn't important.

This is where spotting some of the following language might prove helpful. While this story isn't a legal primer, and you should always seek out and follow your own maritime attorney's advice, below are 10 phrases you might see in a contract that are worth your attention.

1. "Any and all disputes arising herein are subject to arbitration."

This sounds pretty obvious, but what might not be as clear is that it is likely exclusive, meaning you may not be able to file a lawsuit, and you may be committed to arbitrating any disputes. There are pluses and minuses to arbitration, but what is important is to recognize that this dispute-resolution term attempts to limit your rights to pursue an action in court.

2. "This contract can only be amended by way of a signed writing."

Pretty clear, right? The problem is it's easy not to think about what this language means. Take a bareboat charter, for instance. The charter agent/owner tells you not to worry about the requirement for insurance set forth in the charter agreement. She seems like a good egg, so you cast off without thinking about it again. But when the boat sinks, and you don't have insurance, the charter agent/owner sues you because – surprise! – she didn't have insurance coverage. Trying to introduce her oral amendment of the agreement into evidence is a tough proposition made more difficult by the contract language.

3. "In further consideration of said payment, Releasor hereby agrees to indemnify, defend and hold harmless the said Releasee."

OK, in plain language, this means that the party (Releasor) releasing the other party (Releasee) is obligated to step into the shoes of the Releasee if the Releasee is sued or the language is otherwise triggered. Still unclear? Think of it this way: By releasing the other party, you agree to protect them should any future claims be made against them. This language not only protects the released party monetarily, but also ensures you pay the attorneys' fees associated with that protection.

Whatever the specific wording, this language can carry a lot of weight, so you and your attorney should carefully scrutinize its inclusion in an agreement. If you see this kind of language pertaining to wharfage (dockage) in a marina's contract, make sure you fully understand the potential liability prior to signing, because there might be certain situations where you could be held responsible for liabilities caused by the marina.

4. "This Agreement shall be governed and construed in all respects in accordance with the laws of the State of Florida."

Maritime contracts often involve parties and issues touching on multiple jurisdictions. This "choice of law language," when enforced, requires that any contract be interpreted according to the law of a specific forum – in this case, Florida. Contract law can vary from state to state, and state contract law can differ from federal maritime law. Accordingly, it's worth studying what to expect on the legal front should a dispute trigger this language. This is another area to explore with your lawyer.

5. "Owner acknowledges that vendor shall have a maritime lien against the vessel and any personal property, gear, equipment, or appurtenances on or in the vessel until receipt by vendor of full payment of all of its charges."

This sounds like what you'll find in a salvage or marina contract. Generally, maritime liens arise automatically upon service such as rendering necessaries like repairs or fuel to a vessel, or when a salvor aids a vessel. This language seeks to underscore that fact by separately affirming the lien's existence. In this case, with the benefit of this language, it'll probably be easier for a vendor to execute its lien in litigation. And "appurtenances" can mean a boat's tackle, apparel, furniture, etc., so it's not just your boat that's subject to possession.

6. "Nothing contained in this agreement shall be construed or held to deprive a vessel owner of any right to seek exoneration from or limitation of liability as provided by any applicable law or statute."

Now, this is the real salty stuff. Maritime law allows a boat owner to seek release from potential liabilities – or even be exonerated from liability – in certain circumstances. Under some, limited conditions, this legal mechanism can be waived, so this language seeks to avoid that from happening. To me, the important thing to remember is that if you see this language, consider how the liabilities under the contract might fall out.

7. "Any dispute of whatsoever nature must be brought, if at all, within one year of the cause of action arising."

You'll typically see this in vendor invoices and passenger ticket contracts. It's an attempt to limit the time within which a lawsuit may be brought, and the courts have enforced it in certain circumstances. Setting aside issues of enforceability, you should keep this language on the front burner during the tenure of the contract. Like an orange diamond day-marker, this is not something to overlook.

8. "The Salvor's services are to be performed on a no-cure/no-pay basis."

With any luck, you'll never have to analyze this language, as it is almost exclusively the province of salvage contracts. Marine salvage is an old and widely misunderstood concept worthy of a thick treatise (and there are more than one devoted to the topic). When a vessel is salvaged, the entity or person salvaging the vessel is generally entitled to a salvage award. A no-cure/no-pay provision typically means that the salvor is only entitled to an award if it is successful in saving the vessel from peril. This kind of language seems akin to a contingency-fee arrangement, whereby an attorney's fee is payable as a percentage of the recovery. Whatever the case, a no-cure/no-pay salvage contract is not uncommon in the industry.

9. "Owner expressly and fully waives and releases, to the maximum extent permitted by the general maritime law, any and all claims against vendor for any injury to persons or damage to property occurring during the vendor's provision of any services under this agreement, whether or not as a result of the ordinary negligence of vendor or otherwise."

The intent of this statement is relatively clear, but what isn't clear is the potential scope. Maritime law tends to treat claim-waiver language more broadly than shore-based jurisprudence. Under maritime law, it's possible to contractually waive liability arising out of your ordinary negligence, which is simply not something you see anywhere else in the legal system. The point is that this language may protect a vendor from its negligent actions, so depending on the circumstances, you may not want to agree to such language.

10. "This agreement shall not be construed against either party."

Hmm. If you see this, ask yourself whether you had anything to do with composing the contract. This kind of language is like salad dressing: added at the end, after the salad (the contract) is created and generally only helps the party presenting it. Typically, whoever drafts a contract can be held liable for ambiguity in that document, so this wording is an attempt to circumvent that rule. More than one big case has been won on the basis that an ambiguity was held against the creator of a contract. If you didn't draft the agreement, seriously consider why you should consent to this language.

As I stated earlier, you should always speak with an attorney before entering a contract, to make sure your interests are protected and that you understand the agreements you enter. This article provides some talking points – not legal advice or a legal opinion.

Time and again, I have encountered people who, in the midst of the froth of life, abandon rights and assume obligations without fully understanding the weight of their signature. Knowing where you're going and how you'll get there is as important when it comes to contractual obligations as it is in planning your next voyage.


John K. Fulweiler is a maritime attorney practicing in New York and Florida. An avid boater, he operated commercial vessels before attending law school. He is a licensed Merchant Mariner.

 
 
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