Ask a Maritime Attorney: What is the difference between civil law and maritime law?

Question:

            I have been following your column for a long time, and I am often confused by the various differences between maritime law and regular civil law. It would be helpful to see those differences listed in one place, but I’m concerned that this would require a 300-page textbook. Can you review some of the differences here, at least as they may be of interest to recreational boaters?

Answer

Our reader is correct – a review of all of the substantive and procedural laws and rules unique to maritime law would require a large textbook and a semester class in law school. But we field a lot of questions from readers of this column, and certain aspects of maritime law do seem to be particularly confusing to boat owners. This confusion usually relates to mistaken assumptions about the differences between maritime law and “regular” civil law. Let’s take a look at some of the mistaken assumptions that we see on a regular basis.

What is Admiralty Law?

Historically, the terms “admiralty law” and “maritime law” had separate meanings, but today they are used interchangeably. Admiralty or maritime law is simply a set of legal rules, concepts, and processes that relate to navigation and commerce by water. The body of maritime law applied today can trace its roots back hundreds of years to the establishment of laws by early Egyptians, Phoenicians, and Greeks to govern commerce in the Mediterranean Sea.

Similarly, the application of modern maritime law is focused on maritime commerce, but since recreational boating has been held by courts to have an impact on maritime commerce, most maritime law principles also apply to recreational boating.  Legal principles that work for big ships can produce odd results when applied to a case involving a 30-foot sailboat, but that is nonetheless the legal umbrella under which that case would proceed.

Notwithstanding the applicability of federal admiralty law to recreational boating, a lot of the legal issues that confront boat owners will be determined by the law of the state in which the incident occurred. For example, a dispute arising from the sale of a boat would seem to have an impact on maritime commerce, but a dispute concerning the ownership of a vessel could involve a buyer and seller who are each located thousands of miles from the vessel. The dispute therefore does not have any physical effect on the vessel itself and it would therefore be decided under state law

Consumer Protection Laws for Marina Tenants

This is probably the area with the most confusion among boat owners. There are no statutes or regulations or tenant protection laws in California, or under Federal law, that specifically apply to a slip rental agreement. Most of the statutes that provide protection to renters in California are set forth in sections 1940 through 1954 of the California Civil Code. But section 1940 specifically limits those protections to persons who rent “dwelling units” in California. Dwelling units are then defined as a structure on real property.

A boat is not a structure on real property. More to the point, a boat slip is not a structure on real property. Marina tenants who live aboard their boat are not renting their home. In fact, they own their home, and they are renting place to park it. Slip rental agreements are month-to-month commercial contracts for the rental of a patch of water with an adjacent dock to use as a parking space. Month to month agreements may be terminated or modified – by either party – on 30 days’ notice.

Repairperson Licensing

There is no California consumer agency to regulate or oversee boat repairs and there is no such thing as a repairman being in good – or bad – standing. Boat repair people are not required to be licensed by any California agency (except for regulations related to air and water pollution).

Repair people are subject to California statutes that effect your right as a consumer to sue or be sued by a boat repairman (California Harbors & Navigation Code sections 410 through 418). These statutes apply only to DMV registered vessels, and they have no effect at all on US Coast Guard documented vessels. Nonetheless, a lawsuit against a repairman for a problem arising from work on a Coast Guard documented vessel would be very similar to a lawsuit involving a California registered vessel. Talk to your attorney for more information on this.

Marine Surveyor Licensing

Marine surveyors are not licensed or regulated by any government agency. There is no licensing requirement, and anyone with a voltmeter and a ball-peen hammer can hang up a sign tomorrow and call himself a surveyor. A surveyor who promotes himself as a licensed captain is simply using the license as a marketing tool, since the Coast Guard has no jurisdiction over his or her duties as a surveyor. It’s like showing your FAA pilot’s license to get a job as a truck driver.

The maritime community has its own tools for setting standards of competency for marine surveyors. Surveyors rely heavily on referrals from lenders and yacht brokers for pre-purchase inspections, and assignments from insurance companies to investigate claims. A surveyor’s membership in an industry trade group may provide more insight into their qualifications. Many qualified surveyors belong to either the National Association of Marine Surveyors (“NAMS”) or the Society of Accredited Marine Surveyors (“SAMS”). These trade groups will designate their members as “Certified” (through NAMS), or “Accredited” (through SAMS). This is not a form of government oversight but membership in these organizations can provide some assurance as to the surveyor’s qualifications.

Lemon Law

As the buyer of a “consumer good,” a buyer of a new boat in California is protected by a body of law known as the Song-Beverly Consumer Warranty Act (California Civil Code sec. 1790). The Song-Beverly Act enforces manufacturers’ warranties on all consumer goods sold in California. It covers everything from computers to refrigerators, and it does cover the purchase of a new boat. Under this law, a manufacturer who fails to fix a problem under warranty after a “reasonable number of attempts” must either replace the product or reimburse the buyer for the purchase price, less an amount for depreciation. Failure to comply with the law will subject the manufacturer to strict penalties.

The Song-Beverly Act has one glaring problem for the buyer of a new boat: It fails to consider that a boat is a complicated machine, with a long list of complex systems that may be subject to failure. A manufacturer will be in compliance with the Song-Beverly Act if it repairs each of those failed systems within a “reasonable time,” notwithstanding that it may have deprived the owner of the use of the boat for many months of accumulated down time during the repairs. Song-Beverly may work fine for a toaster or a television, but it does not adequately protect the buyer of a new boat.

In contrast, new car buyers are in a much better position. California’s “Lemon Law” is set forth in the Tanner Consumer Protection Act (Civil Code sec. 1793.22), and the scope of the law is expressly limited to “new motor vehicles.” The Tanner Act offers a number of protections to the buyer of a new car, including a requirement that the manufacturer replace the car or refund the purchase price if, during the first 18 months or 18,000 miles, the car is out of service due to warranty repairs for a cumulative total of more than 30 calendar days. A new car buyer would therefore be protected under the scenario described above, where each individual problem is repaired but the cumulative effect of all the repairs amounts to months of down time. Further, under the Tanner Act the new car buyer is entitled to a refund of the full purchase price without any deduction for depreciation. Once again, we, as boat owners, are on our own.

Vessel Documentation Services versus Real Estate Title and Escrow Services

Marine title companies provide services to the yachting community throughout the country, but the names of these businesses may be confusing to consumers who are accustomed to real estate transactions. When we purchase a home, our title company usually provides “one stop shopping” for all of our title and documentation needs. They conduct a title search, they prepare and record the deeds and mortgages, they escrow funds, and they sell title insurance.

Marine title companies are more accurately referred to as vessel documentation services. They are very effective at navigating complicated vessel documentation requirements for state, federal and international transactions. However, they are rarely authorized to escrow funds, they usually decline to offer a legal opinion regarding a vessel’s ownership and lien history, and they never offer title insurance. Qualified firms around the country that provide vessel documentation services are generally members of the American Vessel Documentation Association (americanvessel.com).

How to “Lien a Boat” – Lien recording and Lien Foreclosure

Maritime lien recording and enforcement procedures differ considerably from their land-based counterparts. Let’s start with the fact that there is no procedure to “lien a boat” and recording a lien with the Coast Guard has almost no legal effect.

A lien is a financial security device that provides collateral to secure payment of an obligation. Regardless of the nature of the particular lien, the question of whether a lien is valid depends on whether various requirements have been met, all separate from the question of whether the money is actually owed. For maritime liens, the underlying claim must be something that provides a service or benefit to the vessel (rather than to the owner), and that service must have been requested by the owner or the owner’s representative.

The lien recording process is the area where maritime liens differ most significantly with land-based liens. The instrument that may be recorded with the Coast Guard is referred to as a Notice of Claim of Lien (NCL). It is, as the name implies, a notice to the world that somebody claims to have a lien. This may be helpful as an economical enforcement tool since a prospective buyer would want the claim satisfied if he or she discovers the NCL on the boats title history. But this “notice” is not a lien, and the recording of a NCL has absolutely no legal effect.

A maritime lien – assuming it meets the requirements of a lien noted above – is automatically perfected without recording anything anywhere. So, there is no need to “lien a boat.” The recording of a NCL is entirely optional, and the Coast Guard expressly warns that their acceptance of a NCL for recording provides no evidence one way or another about the validity of the claim. Validity is established and the lien is enforced through a complicated and expensive procedure that requires the filing of a lawsuit in Federal Court and a “civil arrest” of the vessel by the U.S. Marshals.

David Weil is licensed to practice law in the state of California and as such, some of the information provided in this column may not be applicable in a jurisdiction outside of California. Please note also that no two legal situations are alike, and it is impossible to provide accurate legal advice without knowing all the facts of a particular situation. Therefore, the information provided in this column should not be regarded as individual legal advice, and readers should not act upon this information without seeking the opinion of an attorney in their home state.

David Weil is the managing attorney at Weil & Associates (www.weilmaritime.com) in Seal Beach. He is certified as a Specialist in Admiralty and Maritime Law by the State Bar of California Board of Legal Specialization and a “Proctor in Admiralty” Member of the Maritime Law Association of the United States, an adjunct professor of Admiralty Law, and former legal counsel to the California Yacht Brokers Association. If you have a maritime law question for Weil, he can be contacted at 562-799-5508, through his website at www.weilmaritime.com,  or via email at dweil@weilmaritime.com.