A Maritime Lawyer’s Point of View
Proposed Senate Bill 664, if passed by both houses of the Florida legislature, will take effect on July 1, 2018. As infallible as legislators are, it may be hard to believe that there could be unintended consequences of the proposed legislation. Please read as much dripping sarcasm into that sentence as your imagination may permit.
If passed, the new Florida law would tighten the parameters within which salvors may work and provide the boater with legal recourses should the salvor overcharge for services, “overcharge” being a very broad and undefined term under the proposed bill. Specifically, the legislation would allow “any customer injured by a violation of [the] section to bring an action in the appropriate court for relief” and further that a prevailing customer in such action would be entitled to “damages equal to 1.5 times the amount charged by the salvor, plus actual damages, court costs, and reasonable attorney fees.”
(Read our earlier coverage here and here.)
The proposed legislation would also provide the customer with an avenue for injunctive relief as a penalty to the salvor. While this may sound positive to the savvy, cost-conscious boater, if passed, the law may have significant conflict with a broader spectrum of maritime law. By definition, “Salvage is the reward or compensation allowed by the maritime law for service rendered in saving maritime property, at risk or in distress, by those under no obligation to render it, which results in benefit to the property.” (Citation: The Neshaminy, 228 Fed. 285 (3rd Cir. 1915).)
For years, courts have interpreted salvage as a means to encourage saving lives and property on the water. The proposed Florida law would tighten the reigns of salvors by requiring a salvor to provide a recreational vessel customer with verbal and written notice that the salvor’s offered service is not covered by any towing contract before any salvor may engage in the salvage operation of a pleasure vessel. Furthermore, the bill would require that the salvor’s written notice include a specified statement (except in the event of “imminent threat of injury or death to any person on board the vessel”).
Aside from the obvious issue that many salvage situations do not provide time for notice and approval of fees between the salvor and boater because by their very nature they are emergencies, although it is possible to have contract salvage, by definition pure salvage is not a contract.
So, how these factors impact courts’ interpretation of the law when disputes arise, is an open question. In addition, the proposed Florida law raises legal consequences from a jurisdictional standpoint. As mentioned above, the proposed legislation would allow the customer to bring an action in “the appropriate court for relief.” Does this mean the state courts of Florida?
Traditionally salvage cases are usually heard by federal courts. This is one area in which the language could be more clear. Further, the proposed bill states: “The remedies provided for in [the] section shall be in addition to any other remedy provided by law.” This language also leaves a huge possible loophole which may implicate other consumer protection statutes. It is uncertain as to how such a law will impact the jurisdiction of courts, which would purportedly hear the disputes that may arise out of such legislation.
State lawmakers are permitted and even encouraged to supplement Federal maritime laws, but the issue with Florida Senate Bill 664 is that it tip toes dangerously close to an attempt to preempt Federal maritime law. It is important to note, given that the intent of the Florida legislature was not likely to attempt preemption, but there is an interplay with Federal maritime law for the maritime legal community to debate, which is a topic beyond the scope of this article.
In summary, there are obviously benefits to the average boater if salvors are restricted from “price-gouging” and what some believe to be “taking advantage of” a situation, but the unintended conflict of the proposed law with the body of general maritime law may be the long-lasting story. Boaters should stay tuned for further developments regarding the proposed Florida Senate Bill 664.
Does the Proposed Florida Salvage Law Tip-Toe Too Close to Federal Ground?
The author, Atty. Melaina Haisfield, is “of counsel” to BoatingLaw.com, a maritime law firm based in Annapolis, Maryland. She is licensed to practice law in the state of Florida. The firm’s principal is Todd Lochner, a regular speaker at TrawlerFest on the subject of boat taxes and firearms law. He is speaking at the upcoming TrawlerFest-Florida in Stuart next month.