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February 22, 2013

2

Four Unforgettable Legal Voyages: Part II — Broaching Bad in Puget Sound

by WSBA
seattle sailing
Attorney Timothy MB Farrell recounts a day of maritime mediation and thrilling maritime mishap.

Read Part I: Hawaii to San Francisco

seattle sailing

My second unforgettable sailing adventure occurred in 1995, a couple of years after the Hawaii to San Francisco trip. By this time, I had found a maritime law job representing injured seamen before the U.S. Federal District Court for the Western District of Washington, in Seattle. (Almost all of the fishermen’s contracts stipulated to Washington law and a Seattle venue.)

The typical case asserted 3 claims. The first was for Jones Act negligence, 46 USC 688. Proving negligence under this statute was said to be a feather-light burden, which entitled the seaman to past and future loss of income, expenses of medical care, pain and suffering, and the loss of enjoyment of activities of normal life.

The second claim was for unseaworthiness. This is an ancient maritime remedy a vessel owes to a seaman, entitling the seaman to the same damages. Unlike a Jones Act claim, however, the remedy is both in personum against the operator and in rem against the vessel.

The third claim was for maintenance and cure, another maritime remedy regardless of fault for the reasonable expenses while on shore, lost wages, and medical care of an injured seaman. Liability is both in rem and in personum.

Typically, cases were sent to mediation, where most were settled by senior members of the maritime bar acting as mediators. We did about one a week. Rarely did the mediations go past 5 p.m., which allowed me to sail in the Thursday night races run by the Corinthian Yacht Club behind the Shilshole breakwater, north of downtown.

I answered a couple of crew-wanted ads before finding a good match on an X-99, a 10-meter racer cruiser.  Supposedly, we were Boat of the Year, but I never really understood that (other than seeing the owner’s coffee cup with that designation sitting in the sink). Anyway, we were pretty competitive, with good starts, excellent traveler work on the main sail upwind, and my driving on the downwind legs to take advantage of my windsurfing skills.

The following year, we were joined on several races by one of the skippers from the Pegasus Syndicate, the first all-woman America’s Cup group. Our guest skipper had done the Whitbread around-the-world race, and she and another of our crew, who had also sailed in the Southern Ocean, described their experiences in 50-foot-plus seas.

One day, the owner couldn’t make it to the race, but gave our guest permission to dive in that night’s race. In the hot summer evening, we could see thunderclouds to the south. The winds were shifty with the storm disturbance, but our skipper was excellent and we did well, calling the shifts on the upwind leg, and we were with the pack as we raised the spinnaker around the upwind mark.

Our guest skipper stayed on the helm while I popped the chute and wrapped the sheet around the winch.  About halfway down the leg, in front of the Seattle Ferry Terminal, the wind really started to build. Twenty knots, then 30, as the hull planed out of the water and the fleet took off. As the waves started to build, the crew stepped back to keep the boat’s nose out of the water.

Behind us, we could hear some commotion, and looked to see that a line had parted or something had failed, so that another boat’s chute was flying free from the top of her mast. A second later, the boat beside us started to take down her spinnaker, the gusts overpowering her and making her skipper nervous. There was a second or two of debate as to whether or not we should do the same, but the skipper urged us all a little further back and told us to hang on.

A moment later, we screamed into the back of a wave, submerging the bow and driving the spinnaker pole into the water. At the same time, the wind pushed the boat onto its side; the mast slammed into the water and the forward momentum drove the sleek bow of the X-99 deep into the water, almost up to the open gangway amidships. Unbelievably, we all managed to stay on board, and slowly the bow came out of the water and the boat righted itself, now that the sails had been depowered. Looking around, we could see at least two other boats that had also broached. The folks who had taken down their spinnaker sailed on, having made the right decision.

I will never forget the lessons of that thrilling race, which would serve me well in the following year’s inter-island race in the Northern Marianas.

Stay tuned to NWSidebar for parts 3 and 4 of Timothy MB Farrell’s Legal Voyages!

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