 And aloha. My name is Mark Shklav. I am the host of Think Tech Hawaii's Law Across the Sea program. Today we'll cross the sea on the deck of maritime law. On deck with me today are Mark Koberley and Michael Nakano. We will discuss the contemporary practice of maritime law and current events that make that practice, which has been awash in the history of ocean-going vessels, constant and compelling in the present day. However, before we jump into our discussion of this specialty law practice, Mark and Mike, I'd like to welcome you and ask you to please introduce yourselves. Tell us a little bit about your background, what you do, where you work, and how that is all connected with maritime law. So Mark, welcome. Thanks for having us. So my title is Senior Claims Adjuster, and I've been a claims adjuster since the mid-80s, starting with handling workers' compensation claims in California. And in the mid-90s, I was first introduced to federal laws under the USL&H, Longshore and Harbor Workers' Compensation Act, as well as General Maritime and Jones Act. And currently, that's what I do now specifically, is handle claims that involved semen, working on board vessels, as well as passenger claims. So it's all bodily injury claims where they're working primarily or on board a vessel. It's on the sea. It's on the sea. Okay. And what firm are you with? So I work for Asgard Summit Management Services. We are a Charles Taylor Company, which is a UK-based company. And here in the United States, we specialize in maritime claims. So an international company. Correct. So Mike, how about you? What do you do? Where do you work? How is it connected with maritime law? Well, I was born and raised here, graduated from William S. Richardson Law School in 97. Since then, I've pretty much been doing primarily maritime law. Started out at a firm called Alcantara Frame. Right. And the old timers probably remember them. I'm an old timer, so I do remember them. So they were the main admiralty firm in town. Started out there. And currently with a firm called Cox, Wooten, Lerner, Griffin, and Hansen. Again, we do primarily maritime law. That's pretty much it. And you have offices around the United States? Yeah. So CWL for short. We have offices in San Francisco, Los Angeles, and Honolulu. Okay. So across the sea. Correct. Across the sea. Okay. All right. Now, what is maritime law today? Where do we start? Define it for us. So maritime law is the law that governs the vessels on the open sea or any navigable waters. So navigable waters includes the open sea, inlets, rivers, lakes, bayous. So anywhere that a vessel can navigate, if a seaman is injured on the course of that voyage, it would be entitled to recoveries under maritime law. I guess sort of to expand on that, I get asked that question a lot. When people ask me what I do, I tell them I'm an attorney. And they say, well, what kind of law do you practice? Maritime law. And it's always the same response. They always say, maritime law. That's interesting. What is maritime law? And so what I generally tell them, I say, look, it's any kind of law you have on land, but basically in a maritime context. So whether it's personal injury, contracts, contract disputes, things like that, collections, you can pretty much find the same type of law and disputes in the maritime context. I have a question for each of you based on what you just told me. So Mark, I mean, navigable waters. How far up do we go? I mean, how far up do we go? What is that? If you're on the Mississippi River, do you go to the source or is there a definition we can rely on? Well, essentially, once the vessel departs, but certainly any incident or accident that occurs on the vessel, if the injured semen, the injured person can show that they were in the assistance of the navigation of the vessel or the mission of the vessel or serving in the mission of that particular voyage, they would be considered a semen, have semen status. So it's quite broad in a way. It can be very broad, absolutely. So the engine, if it's the engine guy working on the engine and he's injured and he hurts himself fixing one of the engines, then certainly he would be entitled to recovery under general maritime law. So it sounds like it's more in the context of the ship itself than where it is. And if you're on the ship, does it matter where you are or is it the law on the ship? It can vary, absolutely. But for the most part, if the injured semen is working in the service of the vessel or on the mission of the vessel, then they would be entitled to recovery under general maritime law. Okay, so Mike, my follow-up to you is why do we need a separate law from the land law? I mean how did that develop? Is it an international type thing? Is it different country by country? So again, yes, so more or less every country has its own maritime law. The one, I guess, common denominator is, as far as I know, a lot of it comes from and originates from British maritime law. They were sort of, you know, hundreds of years ago, they ruled the seas. They had all of the ships, they had the biggest navy. So it's not surprising that British were the ones who developed the maritime law. And it was interesting because that was at a seminar recently, an international maritime law seminar in Singapore. And somebody brought up, said something very interesting in that, you know, international maritime law developed because the British ruled the seas. In this day and age, they don't have the most tonnage. They don't have the most ships. They don't have the biggest navy. Yet the comment was that the Brits have managed to maintain their hold on maritime law. And what I mean by that is, obviously we've got a lot of traffic, international commerce going back and forth. And oddly enough, a lot of, when a dispute arises, the contracts, a lot of them state that they'll be resolved through London arbitration. With the English barristers and solicitors. So you could have, in Singapore they were complaining, you have two Singaporean companies that are fighting over it, but they've got to go to London to hash out their disputes because that's what the contract calls for. So again, I think certainly our law is derived in large part from the British maritime law. And I think a lot of other countries have followed suit. Now, historically then, Britain was perhaps where maritime law began, dealing with things that happened on the ship. How have things changed historically to the modern day? What's happening, is it different now than it was say in 1800 when King Kalakaua in 1881, when he went around the world on a ship, a sailing ship, are things different from that time now? Well, I think one of the big changes from the England maritime laws as it relates to the United States was the passing of the Jones Act in 1920. That's a U.S. law. That is a U.S. law. And so prior to the Jones Act, which is a cabotage law for the most part, what does that mean? It governs the transport of goods across the sea from one country to another country. So the aspect of the Jones Act that Mike and I deal with specifically is geared towards negligence and recovery of a seaman who is injured due to the negligence of their employer or the ship owner. And so prior to the Jones Act, a seaman could only sue for unseaworthiness of a vessel. So if something went wrong on the vessel that caused their injury... Unseaworthiness, you're going to have to help me out, you folks. What does that mean? So a ship owner has a non-delegable duty to provide a seaworthy vessel. In other words, that the gear works. They have a crew that is competent and able to perform the duties on board the vessel. However, should something fail, then that would cause an unseaworthiness or an unseaworthy vessel. And if that whatever was that failed to function properly caused an accident or injury to a crew member, then potentially they could sue the vessel owner due to unseaworthiness of the vessel. So that was their remedy prior to the Jones Act. The Jones Act, when that passed, then they could sue for negligence besides unseaworthiness, Jones Act negligence. That the ship owner was somehow negligent in causing or the incident to happen. So Mike, what type of claims are we talking about? What's the difference then between seaworthiness and negligence involving the owner and the Jones Act? One of the big differences is the party who you can make a claim against. So Jones Act negligence is generally, that's between the seaman and his or her employer. That's the relationship. Unseaworthiness is primarily with the seaman and the vessel. It gets a little bit confusing whether or not the employer owns a vessel or the employee doesn't own the vessel. And that's sort of the big difference between the two. Okay, well that's an interesting distinction that I never knew about. You can actually think of the vessel as being a individual, a person. You can actually sue the vessel itself and Mike would probably talk a little bit more about that where they actually seize the vessel. Well that is a distinction from ordinary commercial law on land, land law, right? Treat the vessel kind of as a person in a way, right? Is that how it's viewed? Pretty much, I mean, Mike, he's the lawyer. He can explain a little bit in what a better de-hit tell. Yeah, in short, yes. Under Admiralty and Maritime Law, you can bring what's called INRAM claims, which are directly against the vessel. In addition to your INRAM claims against the vessel owner or your employer, and I think that's one of the big distinctions between, as you pointed out, sort of land side law and maritime law. So in a lawsuit, I want to ask you in a minute what type of cases you handle, but in a lawsuit then you have somebody that sues the vessel. Is that what's happening? Or if it's a claim involving some type of negligence, could sue the employer or under the Jones Act, who do you sue? I mean, who are the parties? I guess that's my question. Well, again, it depends on what the cause of action is. If it falls under Jones Act negligence, or if it falls under the unsee-worthiness of the vessel. And so what I see more often than not is the seamen suing their employer, who on most of the cases that I have also own the vessels or a fleet of vessels. Okay. Yeah, I agree. And I guess in most cases, if we're talking about a seamen claim, they will sue the vessel owner, the employer, whether or not they are the same party or different parties. It's not as common to see INRAM claims. Sometimes we'll see a vessel named, but in order to actually, or the court to actually have jurisdiction over the vessel, it's a very involved process. You can't just name the vessel. Unlike people, you have to have a way to serve the vessel. And in maritime law, the only way that's done, and the only way the court gets jurisdiction over the vessel is if you go out and arrest it, which is a whole lengthy process. And that would, where does that happen normally? What court are we talking about? So INRAM claims, it has to be in federal court. You know, the federal courts have original jurisdiction over admiralty and maritime claims. INRAM claims are in admiralty, so they have to be brought there. So it basically, you file your complaint, and it's against, in person, whoever individuals or corporations, plus you name the vessel, it's going to be a verified complaint. And then, you know, you've got to file all of these other papers basically to get the court to issue a warrant of arrest for the vessel, which then is taken to the United States Marshal, who goes out, goes to the vessel, and says to the captain or master, whoever's in charge, this vessel is now under arrest. They'll put a sticker up and say, you can't go anywhere. You can't leave until this vessel is released from arrest. And I want to take a break right now, short break. When we come back, I want to ask about why we needed the Jones Act, and have you guys give me some explanation of what prompted that. And then I also would like to have you expand a little bit more on the type of cases you handle. But right now, we'll take a break. I'll be back with Mark Coberly, Mike Nakano, in a minute. All right. Thank you very much. The Hawaii Energy Policy Forum. Hawaiian Electric Company. Integrated Security Technologies. Galen Ho of BAE Systems. Kamehameha Schools. MW Group Limited. The Scheiler Family Foundation. The Sydney Stern Memorial Trust. Polo Foundation. Yuriko J. Sugimura. Thanks so much to you all. Welcome back. I'm Mark Schlaufe, host of Law Across the Sea with Mark Coberly and Mike Nakano on deck with me. And we are talking about maritime law. And my question that I want you folks to talk about a little bit is, why did we get the Jones Act? It sounds like we had some maritime law from Britain. But then the United States, we did the Jones Act. Why did we need that? What was that about? Well, like I had mentioned earlier, prior to the Jones Act, the injured seamen really had no remedy against the vessel owner in the event that they were negligent and causing an injury to them. So the Jones Act provided that provision where they could sue the ship owner or their employer due to negligence causing the injury or accident and recover damages for that. And so Congress kind of felt this was something that we should be added to the historic law from Britain. Yeah, I think that's one of the reasons. And I think something, as Mark previously mentioned, I think a part of the Jones Act that especially us here in Hawaii are more familiar with is the cabbage part of it, which means basically ship sailing from U.S. port to U.S. port have to be U.S. flag vessels, U.S. built, U.S. seamen. And I think the reason for that was to promote and encourage U.S. shipping, not only to have a strong merchant marine, but also to encourage the shipbuilding, the shipbuilders in times of emergency or war, the country felt they needed to have that resource. There's kind of an economic background to it also that it sounds like. Sure. All right, now, what type of claims do you folks handle in your business daily? What type of things do you see come across your desk in the maritime law? Right. Well, so I would say that my caseload is split pretty much 50-50 between injured crew members. And here in Hawaii, that involves the captain or deck hands on some fishing vessels, a lot of recreational or like the catamarans, snorkel boats, the whale-watching boats. If any of the crew members are injured and they can range from back injuries to crushing their finger or falling and hitting their head, things like that. Also, unlike workers' compensation, if the crew member becomes ill and on board a vessel, then that's covered under general maritime and the benefits that are paid to them are maintenance and cure. Maintenance and cure, that's a special word. Special words. Right. So unlike workers' compensation where they would pay temporary disability for the time that they're off work, maintenance is a daily raid or a stipend paid to the injured semen in lieu of room and board that they normally would have received while on the voyage. And so while they're recovering, they're entitled to maintenance payments. And again, this is an old law that goes back and it's typically for semen who are on these long-term voyages between countries or on fishing voyages. But we apply the same law to captains on catamarans. So they get up in the morning, they go, they're on the boat for eight or nine hours on these different cruises taking passengers out to snorkel. And then if they're injured, the law still says that they're entitled to maintenance, even though they don't live on the vessel, they're still entitled to maintenance until they're no longer in need of curative treatment. They've basically recovered from their injury. And the cure is? And the cure is basically their medical treatment. And it's defined as curative treatment. So treatment that is specifically to cure them of the injury that they sustained, as opposed to perhaps palliative treatment. And there's certainly arguments of what is considered curative and palliative. And your firm would take care of the insurance coverage for that? Is that right? So my firm, we're not, I'm not with an insurance company. I'm just a claims adjuster. And so a lot of the insurance companies are on the mainland, some out of London that writes this type of insurance, which is P&I coverage, protection and indemnity coverage. And so I'm the boots on the ground here in Hawaii. So I'm the one who ensures that the injured worker is receiving the maintenance and cure, coordinating the visits with the doctor, making sure the treatment is appropriate. So if it's a specialty that we don't have here in Hawaii, sometimes we may have to send them to the mainland for treatment. And it's not just injuries, again, it's illness. So if the semen had a stroke while on board, or a heart attack while on board, or if they became ill and it was determined that they had cancer, and cancer was diagnosed while they were on board the vessel, those illnesses are covered under general maritime, under maintenance and cure. Well, Mike, what about you? What's your standard type of case? Or is there such a thing? Is it all over the map? We certainly handle a lot of maritime personal injury actions like Mark, crew member or passenger injuries. We also do, again, because it's a small port, we also touch upon various other maritime law issues. So we'll get the occasional cargo claim, we'll get involved in contract disputes and end up arresting a vessel or defending a vessel that's been arrested. You know, we'll salvage claims, things like that. In some of the large reports, you have law firms who specialize in one type of maritime law. But again, because this is a smaller port, we tend to touch upon more or less everything and anything. The whole spectrum of types of cases, is your normal client, I guess it could be either a seaman or a shipowner, I suppose it could be either one or... Well, generally we do represent vessel owners and employers. We do insurance defense. We represent what are called P&I clubs. They're mutual insurers that ensure the large shipping company. We don't think about it too much, but there's been a couple maritime cases that have been in the news. I think people, when they watch the news, they don't think that's a maritime law case. But we have the one where the diving ship caught fire and about 34 people passed away. And then we had a container ship turn over. Do you have anything to add to those cases? Is there some comments about those? How does maritime law affect them? What are your thoughts about it? Where do they go with those cases? I guess the most interesting thing about... I haven't followed the car carrier that overturned as much. I think the conception, the dive boat, it needs a lot more. And a lot of the stuff I've seen, at least in the press, is discussions about the limitation action that's been filed. And what that is, is normally, as I said, both Mark and I are on the side of... We represent the vessel owner or the employer, and we're usually representing the defendant in a lawsuit. But if you notice this limitation action, it was filed by the vessel owners. So the Limitation Act is an old act. And I think somebody mentioned it was pre-Civil War. I'm not sure what the exact date was. But it intitles the... It provides a vehicle for the vessel owner to get exoneration or limit their liability to the value of the vessel. And I believe the origin of that was to encourage investment in shipping. Again, background in the economy. Exactly. Before big insurance and where you could get insurance, they had to find a way to encourage people to invest in shipping. And one of the ways to do that was say, we'll accept this path which allows you to limit your exposure to the value of the vessel at the conclusion of the voyage. And basically that's what this is. So the vessel owners went in, they filed a limitation action saying, either... I haven't seen it, but they're probably saying, we either want to be exonerated from liability, we had nothing to do with it, or if there was some sort of negligence or unseaworthy condition, then we had what's called no privity or knowledge of it. And basically it wasn't the owner's fault. And therefore as owners, our liability is limited to the value of the vessel at the end of the voyage, which in this case is nothing. I think there's been some recent... More recently they've changed the law a bit, so there's a minimum. So there's a certain dollar amount that you have to post regardless, even if it's a total loss, based on the tonnage of the vessel. So that's what's going on in that case. Mark, do you have anything to add to that? Not really. I mean, I watched the news, and I will say I'm glad it didn't happen in Hawaii, but it's unfortunate that it happened at all. Okay, guys, now, you have about a minute left. Is there something about maritime law that catches you or that makes you feel good or makes you feel this is something interesting? Is there something about maritime law that turns you on? Well, you know, the cases are, you know, having handled workers' compensation and now handling maritime cases. The types of exposures can be very different. And as an adjuster, the investigation process of it and finding out the nuances and the details and how the law applies to that, I find it interesting and kind of makes my job fun. Makes it different, yeah. Okay, all right. Mark? You know, I think, well, one, we're the only lawyers in town that still cite cases from the 1800s. But I think one of the things is the fact patterns that you see are always interesting. And, you know, I just remember saying to one of my partners recently, you know, you can't make this up. And every day you see stuff that you say, I've never seen that before. So it sounds, from both of you, this is an interesting area of law. Maritime law is something that makes life as a professional a little bit different. Absolutely. And fun. Okay. Well, thank you both very much for being here. I appreciate getting the current events of maritime law and how it affects us. And thank you all. I am Mark Schlaufe. We are over for today and looking forward to our next program in a couple of weeks. Aloha. Thank you to Mark Coberly and Mike Nakano for today's show. Aloha. Thank you.