 This is Think Tech Hawaii, Community Matters here. Welcome and Aloha. My name is Mark Shklav. I am the host of Think Tech Hawaii's Law Across the Sea program. Most of the earth is covered by the sea. Sometimes we forget this fact. We focus on laws of the land. Our vision of law and legal rights often stops at the shoreline. Today we'll talk about the law that addresses legal issues that involve working on or with the sea and the people who cross the sea as part of their livelihood. My guest is Jay Friedheim. Jay is a lawyer who specializes in admiralty and maritime claims. And I've learned that they're called proctors in admiralty. And I'm interested to know more about that. He helps stevedores, ship repairs, maritime workers who perform their jobs on the waterfront. He is the principal in the law firm of admiralty advocates with offices in Honolulu and Anchorage. I am going to say ahoy Jay because I'm a landlubber, I guess. Welcome. Come on on board. Thank you. Thank you. I want to ask you permission granted. Jay, what is admiralty law and how did you get involved in it? Tell us a little bit about it. Give us an introduction. Okay. Let me start off with your question about proctor in admiralty. It comes from, it's a it's a a moniker that now is administered by the Maritime Law Association. To become a proctor in admiralty you have to submit that you have participated in admiralty trials and that in the idea of other members that you're qualified to do this. But historically that's what they call people that practiced in the admiralty courts. Now our laws came into us at the time of the Constitution or actually at the time of the revolution because there was articles of confederation before we had a constitution. When that came in it adopted basically the system and laws of England. England historically had three principle courts. They had the King's Court which were the statutes and regulations and laws. There was the Church's Court which was equity, property, inheritance, and there were the admiralty courts. Wow, so a separate court. Different buildings even. Now there were very different regulations and rules on how you could do things and there were different opportunities. There was no jury in an admiralty court. And that stayed with us now until this time. If you have a pure admiralty claim you don't get a jury unless it's connected to something like the Jones Act which is how a seaman gets a recovery for negligence if he's heard at work. So that having been said how did this come in? Well it turns out that the laws in England developed slowly over a long period of time based upon the realization that if the people that owned ships didn't trust the law in your country they wouldn't let your ship go into those ports. And so if you're not if you don't have ships coming and going there's no trade. And it was considered to be so important that they didn't want to leave it to the King and they didn't want to leave it to the people in jury situations or to the churches because this international this international nature of the situation is really what is what's driving it. It's the same deal right now. You know the laws that are administered in admiralty here are virtually the same as every other country in the world. Really? Really. Really. And then at the time you know when the Constitution was adopted it was we had articles of confederation and the whole thing was taken over by local colonies and we tried to get together and form a United States. And the original courts in admiralty at that point were administered by the states and it wasn't working well. There were concerns about prize ships and piracy and things like that. So that was being handled under the articles of confederation. When we develop the Constitution we have some records they're called the Federalist Papers and then there are diaries and Hamilton in the Federalist Papers I think it's a Federalist 78 says hey you know admiralty what's to argue about this everybody agreed and the states all surrendered their right to administer admiralty to the federal government. Our Constitution specifically says that we that there is jurisdiction in the federal courts for admiralty and maritime cases and so that's basically what it is and there's this need for uniformity. People with ships doing trade want to know that if they pull into Long Beach they're going to be treated the same way as Honolulu or New Jersey and did this all start from England I mean is this oh it goes way before then oh no no no you look at there's a Justinian wrote one of the Caesars right wrote very you know wrote a lot about how the laws were developing and he makes reference to the laws of the Rhodian laws and that he says that those laws are adopted into Rome to the extent they don't conflict with other laws that already exist so the whole thing was taken in then and then that was like in the antiquity days Greek and Rome. So I kind of what I'm hearing is this goes beyond boundaries of country this is talking about trade in a way I mean this is when people started trading they had ships and they wanted to have some oh security or uniformity absolutely is that what's going on here the keyword was uniformity at the formation of the constitution and in the middle ages the the the roles of Oleron the laws of Hanstown and Wisby they talked about all these different what are called traditional maritime remedies and the main focus is on the sailors the highest priority ranking lien in Admiralty law is called maintenance and cure that was brought into the law of England by Richard II the Lionheart because his mother Eleanor of Aquitaine who had children on eight different thrones in Europe said to him hey every time we're on a ship it's these sailors that are getting us here and there and they need to be taken care of in Hawaii that's really a big deal because during the wailing periods these ships were coming and plying our waters and people were getting hurt and they would toss them overboard or just leave them in Maui which is why the daemons you know about the daemons the daemon the semen's church these are historical roots they developed because they wanted to take care of the semen and the kingdom of Hawaii created laws that required vessels to post a bond to make sure that their semen were going to be taken care of should there be an incident well okay but but why didn't the land law i mean what why didn't you trust the land law why you know why didn't why couldn't you take care of sailors by going to a court or somehow going into the the country that you were in when the ship landed and and deal with it there what what was wrong with that well the uniformity aspect and you see they're competing interests here what you're talking about is federalism each state should have a right to experiment with laws that work for their community and there's a tremendous respect for the individual laws that emerged in the location where the incident is being tried but the competing interest is well what happens if they're not looking out for the the interests of admiralty the i this maintenance and cure i keep coming back to it because i'm involved in that a lot that's personally a big passion of mine i'm really into helping people that are hurt it's not just the workers i help passengers and admiralty law and the laws of the states are vastly different in regards to how things are taken care of well for example yeah please people who load and unload boats that was a big deal in england because um you've heard the terms flotsam and jets those are things that came off of a sinking ship and that floated up onto the shore did it belong to the king did it belong to the person who found it or this recent case involving a fire on a vessel out at sea right 3500 brand new cars on it and people jumping overboard and some of them have been lost well these questions like salvage you have an absolute duty to go out and help in a life salvage situation ships are diverted you're under required to try to come to their aid if the only thing you're doing is saving human lives there's no pay in it but if it's related to the fact that you're saving property then the fact that you engaged in life salvage becomes a priority claim also i mean you think about it you got you know there's a ship out at sea it's on fire you got to bring your ship right next to it it could explode there's a lot of danger in it or all these local salvers rushing out there to try to help well it's not only the humanitarian aspect of it is if they save that property they're entitled to a significant share of its worth so it's a way to encourage people to do something good yes in a way not just for trade but to protect lives and and and people but i guess i mean it it also comes into well i mean we're going to give you something for this i mean we're going to make it work just compensation yeah and that's figured out by courts or mediators or it can be by contract you know come over here and help me i'll give you something and then that's actually a contract even if it's just verbal in in in in admiralty law mm-hmm okay all right now you know why can't you go into state court well you can go into state court because after we developed the constitution we had a judiciary act in i think 1789 and there's a term in there saving to suitors their rights at common law so if you can show that you had a right to have your case heard at common law which meant a state court a jury then you preserve those rights in our law in america well how does that come into play now right you have these people that are loading and unloading ships and they're generally workers in our state but they are not subject to the state workers comp law they're subject to the longshore harbor worker compensation that's a federal federal law with a whole program that's administered by administrative law judges and very peculiar rules 95 percent of the workers probably 99 percent of the workers in hawaii are not covered by it they're only covered by state workers comp so the vast majority of workers comp lawyers have nothing to do with this law never heard of it well they've heard of it they know oh no gotta send it to somebody who doesn't because it's full of what i call pitfalls for the unwary you know different situations that come up that you have to do a certain procedure and if you don't you could be out of luck so there's this that's how you take care of these workers and basically i get my cases from other workers comp lawyers who say oh no this is so and the type of workers are those that are working on the docks they're working on ships or both or what longshore those are the people load you know harbor workers people building in the harbors uh people who repair ships those are the people that are covered and that's a big question who is you know like secretaries are not but the people that actually do it security guards are not covered but the people are actually performing the work going on and off of ships they're covered now that's just the workers program there's another body of admiralty and maritime law that's exclusively administered by the federal courts and those procedures were vastly different than the rest of the procedures in uh in legal system up until recently when america tried to consolidate its courts so that there weren't three doors that you walk through admiralty uh 1331 you know statutory law or equity admiralty 1333 is its own beast and there are special rules at the back of the uh federal rules of civil procedure that only apply so if i'm a federal judge i have to know this stuff right i mean you yeah do all i mean is this part of their training is this something that they that they have to know and we're really blessed with the judiciary in our state that is phenomenally talented and we are the source of the major decisions in maritime law at this moment that affected in hawaii yeah it comes from hawaii um and these okay so that one of the tragedies is it's the oldest law but it's too often not understood by lawyers and judges but they get it you know remember sam king sam used to say my job is to decide right it's to reach that decision it's the ninth circuits job to figure out if it's right or not and that's really what what happens is you know ninth circuit can't decide what the facts are the only the court that hears the facts so what we've gotten you know the federal judiciary is really in an awkward situation because it's the most exclusive club in america who gets to be a federal judge and they have no no voice whatsoever in who the new members are going to be right it's a very awkward and they just can't stand up and protect themselves it was extraordinary for justice roberts to get on the public media and to correct the president's misinterpretation that judges were different based upon which president appoints them and there's reasons you know the constitution gives them life tenure their salaries can never be reduced and that independence was very important at the time we became a nation because the king of england used to like cut the salary of the judge who ruled against him or get rid of his job and that that protection creates a very independent judiciary that we are proud to be a part of so and the admiralty judges are federal judges they they got to learn this stuff uh and they they got to be up on it and hawaii has has a history of of admiralty law and looks like we're maybe even into the future we're on top of the game you mentioned the future let me tell you well wait wait before you do that we're going to take a break okay and then we're going to come back and talk about the future okay well all right yeah thank you so we're we'll be back in the one minute hi i'm rusty kamori host of beyond the lines on think tech hawaii my show is based on my book also titled beyond the lines and it's about creating a superior culture of excellence leadership and finding greatness i interview guests who are successful in business sports and life which is sure to inspire you in finding your greatness join me every monday as we go beyond the lines at 11 a.m aloha hi my name is emmy ortega anderson inviting you to join us every tuesday here on pinoy power hawaii with think tech hawaii we come to your home at 12 noon every tuesday we invite you to uh listen watch uh for our mission of empowerment we aim to enrich and lighten educate entertain and we hope to empower again maraming salamat po mabuhay and aloha welcome back to law across the sea with jay free time is my guest my name is mark schlaufe uh welcome back on board jay uh we are talking now you're you're you're passionate about admiralty law oh i love what i do i can tell lucky to have a chance to be almost 70 years old and work in a what what you know what what's the really we before we had our break we're talking about kind of the relationship between hawaii and admiralty law the past you talked a little bit about the past and sailors that were thrown overboard and had to be dealt with tell me a little bit more what what what is our background in hawaii what are some of the cases maybe you've handled or are handling and how does it portend for the future i mean is that are we back in the sailing days of you know formasted ships or is there something going on yeah we're going from sailing ships to sailing spaceships to doing work out far away the same rules and it's with admiralty law it is you know i believe that the work that we're doing now to really pin down maintenance and cure is going to apply to workers in the future let me give you a hypothetical elin mosk decides he's going to build a structure out on the moon and he has a hundred workers up there and something terrible happens half of them get sick half of them die the guy walks into bank bankruptcy court and says yeah you know i guess it didn't work takes his marbles goes to play a different game and who's going to take care of those and he has to be discharged in bankruptcy and he can be asking in the federal bankruptcy court hey let me out i didn't do anything wrong here i'm sorry i can't pay this bill i'm going to go have another life well we have a case right now and i don't really like to talk about pending cases but there's one in which a guy got hurt on a boat on the big island and that his employer had bought insurance for everything else for himself for his boat for the for the people that were passengers but not for his workers so the man gets pretty badly injured his head's busted open and he's goes to the hospital and he tries to get maintenance and cure now maintenance is a small under the admiralty law under the admiralty law okay okay and there's special rules he doesn't have to prepay court costs to go in they're very welcoming to having sailors come in and that tradition was developed in america and it's very strongly held and goes back to the 1800s all right guy goes into bankruptcy court and says hey i can't afford to pay it winds up buying back his assets from bankruptcy goes on to have a new life and pushes away the his responsibility to take care of the worker so the the shipowner is that correct yes uh decides that uh i will just put this in bankruptcy and i'm able to personally buy back from the company or whatever whatever owns the ship the assets but is not willing to pay for the that's right and that's a case that i have now squarely in front of the court and we're trying to say that there's a violation of the constitution here bankruptcy courts are created under article one of the constitution and the judiciary is under article three which specifically says admiralty and maritime law are preserved are preserved but they're but not only preserved that's the that's the enabling act the constitution itself gives the authority to the federal court to decide issues of admiralty and maritime law bankruptcy law they have a whole other agenda their job is to like try to help out the creditors but really to help an individual discharge debts that they can't handle and so the future of this is really a big deal we have a case that comes out of the court now this barn's case which is the leading authority on maintenance and cure at this time in the entire united states and we think that there's more to come out of this as we try to sort out the problem and in terms of how do the judges know it these people are very talented they they have the best law clerks so the the barn's case is at the first level well we've already gone up to the to the to the ninth circuit one time and come back down and we're trying to figure it out what the ninth circuit wants is this man to get his maintenance and cure to figure out a way to get him a little bit of money maintenance is the money you need to support yourself while you're getting cure and that's the latin word for care medical care until you reach maximum medical improvement so how does the ninth circuit say you deal with bankruptcy court and admiralty court together they haven't addressed that yet but it's my hope that the work we're doing not only is going to help my client get a recovery but is also going to help iron out what the rules are of how these kinds of problems are taken uh you know i got into this really because i when i became a lawyer i had gone to two lane and that's the world's leading admiralty in maritime law school but when i went there it wasn't to learn admiralty i was working in organ transplants and i thought that i was going to do something in terms of legislation and i've tried to run for office i can't get elected to dogcatcher but i do i did get into this maritime law stuff and then hawaii is in the unique position we're the most remote island group in the world we are further away from anything else so basically our we cover about eight percent of the land mass in terms of where you get to the next nearest neighbor which would be on california so these are issues that are really significant and basically at the time you know what hawaii was forming only ships brought things in and out now we've got airplanes and stuff well okay so i want to go back to the barn's case a little bit or maybe we don't have to talk exactly about the case but how will admiralty law affect space travel how do you i mean we obviously we don't have any cases on it right now but what are your thoughts they'll be here soon and what a person is a sailor and maybe that turn will be called an astronaut or something later on if they're more or less permanently attached to a vessel in navigation a spaceship or a program out of board and that their work contributes to the mission of the vessel and that's what we've got i mean the people that used to be on the american hawaii cruises lines who cut hair or waited on tables they were as much as a seaman as the guy turning the rudder or putting stoking the engines so it's everybody that's covered and i don't know how the future is going to unfold but my hunch is that we're laying the groundwork now for the protection of workers for hundreds of years into the future so i mean that's really a kick i don't do golf but i love what i do in terms of social engineering trying to figure out ways and it's not like they're my ideas that are going to work it's just pushing the idea it seems like a natural consequence when you think about it now that you've put it out there their vessels and great similarities you know you know and and how do we protect the the seaman if you will well that when that's what we're trying to do at least to the point you know whether or not they get a recovery for negligence you know whether they get paid for their other damages how do you make sure they get medical care how do you make sure that they're not abandoned how do you make sure that those expenses are not put on to the rest of the people in the state and that the kingdom of hawaii they required the ship to put up a bond if they're coming into the to our harbors because they knew that there something could happen and was there were a lot of these people that needed care and there was you know the daemons thank god you know these guys these were missionaries who came and really tried to do good and they did well as they say you know and you know and so I am you know I I I just sort of fell into this and I got to help a lot of other lawyers doing their admiralty cases I remember you remember Dave Shutter said of course David told me says you know it's not having all the cases or for that matter having the best cases it's about a market share it just need enough work to come in so you can do your job and do it well and process well it seems to me that in hawaii we were ideal for that for you know for admiralty law and I never practiced admiralty law I kind of knew a little bit about it but I didn't know all that you've told me today and nor have I thought really towards the future of it well possibility you know okay well I thought it was a it was a dream job to come to hawaii it's surrounded by water but what I didn't realize before I got here is there were what's called a dead-end port the real admiralty big actions are happening in New Orleans where I went to school that's the biggest port in America or in you know the other cases where there's lots of trade lots of trade lots of men lots of cargo lots of accidents and that leads to the cases and the conflicts that come but there's there's plenty here and you know the best lawyers practicing in hawaii are not necessarily even from hawaii there are many good people in my field that come from california and practice helping these stevedores along with myself there's so much work out there we welcome people to come in and help do it because it's a very complicated program are you seeing young lawyers from hawaii being interested in this area do you see that I mean it's not something that the law schools promote that I see or perhaps I don't know yeah but it seems to me that it's an area that's kind of aside from the normal commercial practice that a lawyer would have well it's about you know getting out of law school you have these debts and you need to earn a living I worked in this building one four below at alcantara and frame when I got out of law school they hired me out of too late and but for that I wouldn't have had a way to do anything and after a year I left and I earned my own my own way but it's that kind of an entry-level position it's hard to come they were an admiralty law oh yeah they're still they still are bob frames probably you know well there's I just want to say the best lawyers in town but there's bob there's proud foot there's other people that are really knowledgeable about this far in excess of my knowledge and abilities and I'm you know I'm glad to be able to be at the table and fight for my clients rights it's really exciting but let me ask you you know you've talked a lot about the background and history of admiralty law what is it meant to you what what what have you what have you learned from admiralty law about maybe yourself and about everybody humanity what what have you learned okay well I mean you know I've sort of like to look through traditions and history me personally I feel like I'm on a mission from God I was in the blues brothers movie I was friends with john velucci and so I really take that seriously like I didn't start out on this path but I feel that this truly had something to do with my destiny I mean everything from my joking business cards that say saving seam in the old-fashioned way and you know I just really took off I really enjoy that kind of work and I came into this through public health I worked in organ transplantation harvesting humanized before law school that's why I went to Tulane they had a medical school there I was going to finish medical school it turned out it was this fantastic opportunity and I wanted to be able to have a family and to support myself so I dove into this maritime law program and I it just the maintenance and cure and the idea of helping people I that's the kind of thing that I really like to do it's not for everybody a lot of people are more comfortable defending the rights of ship owning companies from fraudulent claims by workers that's not where I come from you know I hear a guy tell me a story I basically believe him I want to make sure that it really happened and we go we're all in we're about you know doing it to like try to keep pace do well and finish things that's the motto around my office we try to keep up and there's a lot of work to be able to do a workers comp practice you need to have a lot of cases running because you never know when any of them is going to finish it's not like my clients are paying me anything they can't even afford the costs of filing fees and stuff I have to front all that and so that's sort I love what I do and now as far as new people there are not many people going into this because there's no guarantee paycheck in this you really have to do a volume practice to be able to do it there are lawyers that specialize in doing the biggest in the best cases and those can be very very profitable but the rest of the people normal people's problems we specialize in that and that's what you like to do is help others and that's what gives you your meaning in law and law across the sea here yeah with us well Jay I have to thank you for coming on and talking about your background and and Admiralty Law and I hope we can maybe hear some more about what happens in the future on some of these cases I hope so thank you very much thank you sir aloha aloha we will be back in two weeks with law across the sea thank you very much aloha