Rebel Heart Crew Suing.....

[Dockhead]

Originally Posted by maj75

I'm sure I have dealt with this issue more than you have given your statements above.

This isn't a waiver of liability. It allows suit when the provider is grossly negligent. That's a huge difference and routinely enforced in US Courts.

The contract specifically controls any claim brought against the service provider. This will be enforced. These folks did not have to chose this sat provider. If they didn't like the terms, they could have selected a different provider. If you took the time to read the contract, you might have seen that the forum selection clause specifically requires an action in Florida, using Florida law. I have enforced similar contract provisions dozens of times. Often, this resulted in the injured party getting nothing because they failed to follow the contract terms. Contract claim or tort claim makes no difference, the agreement controls. I would have PMed you but I see others picking up the information you posted.

I'm actually surprised that the agreement allows a lawsuit. There has been a trend towards binding arbitration in many service agreements/contracts.

Originally Posted by maj75

I'm sure I have dealt with this issue more than you have given your statements above.

This isn't a waiver of liability. It allows suit when the provider is grossly negligent. That's a huge difference and routinely enforced in US Courts.

The contract specifically controls any claim brought against the service provider. This will be enforced. These folks did not have to chose this sat provider. If they didn't like the terms, they could have selected a different provider. If you took the time to read the contract, you might have seen that the forum selection clause specifically requires an action in Florida, using Florida law. I have enforced similar contract provisions dozens of times. Often, this resulted in the injured party getting nothing because they failed to follow the contract terms. Contract claim or tort claim makes no difference, the agreement controls. I would have PMed you but I see others picking up the information you posted.

I'm actually surprised that the agreement allows a lawsuit. There has been a trend towards binding arbitration in many service agreements/contracts.

Where do you get all of this? That is exactly a waiver of liability (also known as an "exculpatory clause") -- it attempts to release the phone company from any liability to Eric for its own negligence short of gross negligence. The law is hostile to these clauses, and they are rarely enforced when they appear as boilerplate in consumer services contracts. The main purposes of these clauses is to scare consumers out of making any claim. You are obviously not a lawyer, so I will spare you the technical literature, but here is something on the subject which can be understood by laymen:

http://www.axley.com/publication_art...re-written-on/

Note that of 25 recent cases in that state (Wisconsin), the supreme court of the state held 25 times that a wavier of liability was unenforceable. That is, in 0 cases were waivers of liability found to be enforceable.

Waivers of liability in consumer contracts are treated differently in different states, not surprisingly. In Minnesota, a law was almost passed to ban them completely. In some states, they are enforced if they are well-formed, but they rarely are well-formed. In general, as it's described in the very good article linked above, they have to be narrowly tailored to the specific situation and have to be consciously accepted by the consumer. When they are overly broad and buried in boilerplate, they are usually deemed unenforceable in most states (including Florida). When the consumer has no choice ("if they didn't like the terms, they could have selected a different provider"), the hostility of the law increases -- that's called a "contract of adhesion". That does not mean that the whole contract is invalid, but gives judges a great deal of freedom to toss out contract terms which are unreasonable.

Laymen (especially small business owners) often want for contracts to work by magic: "the forum selection clause specifically requires an action in Florida, using Florida law"; "The contract specifically controls any claim brought against the service provider"; "the agreement controls", open and shut case, right, simple? Sorry, but the law doesn't work like this. Not everything you write in a contract works the way it sounds to a layman, and often doesn't work at all, and most especially when dealing with consumers. Of course if you're a small businessman trying to quash disputes with angry consumers, you will wave around your boilerplate contract and insist that the contract settles everything -- "can't you read?". When the stakes are small, this kind of intimidation often works, as your screwed customers will not find it worthwhile to get any kind of decent legal representation. But when the stakes are reasonably big -- as they are in Eric's case -- it becomes worthwhile to do the legal research and analysis, and very many terms of boilerplate contracts do not survive, especially harsh ones like waivers of liability.

Concerning forum selection clauses in consumer contracts, these are sometimes enforced these days (traditionally they were not, as I mentioned before), but even today they are often disallowed. California -- where Eric is presumably a resident, and where Eric will want to sue -- takes a particularly dim view of forum selection clauses in consumer contracts:

"Ninth Circuit Curbs Enforceability of Forum Selection and Choice of Law Clauses Against California Consumers

"Find yourself here" is not only California's slogan, it is a warning to out-of-state companies that conduct business with California consumers, according to the Ninth Circuit's recent ruling in Doe 1 v. AOL LLC, 2009 WL 103657, No. 07-15323 (9th Cir. Jan. 16, 2009). In that case, the court held that forum selection and choice of law provisions may not be sufficient to keep California consumers out of California courts or to prevent them from applying California law to their claims, even against out-of-state companies."

Jones Day | Ninth Circuit Curbs Enforceability of Forum Selection and Choice of Law Clauses Against California Consumers


As I said, we know less than 1% of the facts in Eric's case, and we can't say anything for sure about whether his case is strong or not. What we can say for sure is that it will not indeed be a simple, open-and-shut case determined by the terms of his contract. It's going to be much, much more complicated than that, and the facts are going to be the crucial part. If it turns out Eric didn't pay his bill, for example, or that he knew that the new SIM card was in the mail but left anyway, then he's going to have a struggle. But if it really happened the way Eric told it -- then I would really not want to be the lawyer defending the phone company. I would not have much hope that that contract would give me much of a leg to stand on. I would be arguing as hard as I could, using whatever facts I could dig up, that Eric's own negligence was the main cause of his loss, but at the same time, I would be advising my client to settle as quickly as possible.


Disclaimer: I am not a plaintiff's lawyer, and I do not necessarily agree that all of these legal principles are right. I spent my whole legal career either teaching in law schools or representing big corporations, and I am rather conservative, philosophically. I do not think that the law should be used to protect consumers from their own stupidity in every case. I am the co-author of a treatise on contract law (that is, a handbook used by legal practitioners) which has a whole chapter on the concept of freedom of contract and the dangers of overriding what people agree to in contracts. So what I am writing here is just a description of the way the law is, not any kind of argument that it is or is not right.

[tomfl]

Originally Posted by savoir

After a pile of netsurfing I found some stuff . . . . . . eventually.

I do not follow his blog and have only read about 1/4 of it. He sure was coy about the whole finance job thing. From his posts on CF I had assumed he was some kind of commercial vessel skipper who had retired after leaving SD. Remember that avatar of him in the officer's shirt ? I had not read a single reference to the finance job but hadn't searched for it either.

As an example, he completes a very long post about money that includes this lone comment
" But the lion's share of our money comes from me working my corporate job as we move around. The specifics of that I'm not at liberty to share . . . . "

Chances are that quite a few here on CF were unaware of this job as well.

Like the commercial says "it's on the internet so it must be true".

I did get the impression RH had professional experience on ships based on his avatar. But then my avatar probably gives the wrong impression about me, since if the truth be known I don't actually wear a tinfoil hat, in fact I don't actually own a tin foil hat.

So let's not get too excited about what someone posts on the internet. I wonder what impression folks would have of RH if his avatar showed him wearing a tin foil hat like the one in my avatar.

[Ex-Calif]

Originally Posted by tomfl

Like the commercial says "it's on the internet so it must be true".

I did get the impression RH had professional experience on ships based on his avatar. But then my avatar probably gives the wrong impression about me, since if the truth be known I don't actually wear a tinfoil hat, in fact I don't actually own a tin foil hat.

So let's not get too excited about what someone posts on the internet. I wonder what impression folks would have of RH if his avatar showed him wearing a tin foil hat like the one in my avatar.

Eric posted for a while - too lazy to search - about either day sail skippering out of SD a 40x ft cat or deliveries or some such - I remember photos. Anyway, he has used his certification in anger so he is a paid professional. I don't think he's ever claimed much more. I've always been aware of his corporate job from the early days.

Re tinfoil hat: My niece graduated law school last year. Before she sent out her first resume she "scrubbed" the internet. These kids although they are completely transparent and live "public" facebook lives, know how this stuff works and know how to clean it up.

If you want to "disappear" from the internet, find a <20X year old. They'll sort you out.

[Patman]

Originally Posted by tomfl

Like the commercial says "it's on the internet so it must be true".

I did get the impression RH had professional experience on ships based on his avatar. But then my avatar probably gives the wrong impression about me, since if the truth be known I don't actually wear a tinfoil hat, in fact I don't actually own a tin foil hat.

So let's not get too excited about what someone posts on the internet. I wonder what impression folks would have of RH if his avatar showed him wearing a tin foil hat like the one in my avatar.

TOmFL, say it's not so. Last time I was in the Keys I spent two days looking for the guy in the foil hat.

[tomfl]

Originally Posted by Dockhead

SNIP

But when the stakes are reasonably big -- as they are in Eric's case -- it becomes worthwhile to do the legal research and analysis, and very many terms of boilerplate contracts do not survive, especially harsh ones like waivers of liability.

SNIP

Wondering what you consider the dollar limit for "the stakes are reasonably big".

Since the CG has said their costs were mitigated because the rescue including some training aspects an argument could be made that that should be excluded.

It is hard to value the boat over $US100,000 and probably much less since to some extent it was damaged by RH's own actions before the sat phone was deactivated; and part of that damage may have been due to RH not adequately repairing the rot. RH has to assume some of the risk for taking his kid off shore knowing the kid was suffering from salmonella and being treated with antibiotics.

Let's also remember so far there seems to only have been a threat of a law suit. Something that has greatly damaged Whenever Comm's street cred and most likely cash flow. So even if RH prevails in a suit there may not be any assets to provide relief.

Maybe the lawyer will file and there will be hearings about forum shopping and jurisdiction will be settled and a court date will be set, after defendant asks for and gets every delay possible. But by the time Whenever Comm may well have petitioned for chapter 7 protection.

Even if the case does go to court and there is insurance to provide relief the insurance company may well have an exclusion if the company is found to have been grossly negligent.

Looks like a small time case being handled by a PI lawyer who was hoping for a quick confidential settlement. Problem is once there is a press release the cat is out of the bag.

Of course there is also the possibility that RH was simply looking for another fifteen minutes of fame.

[sneuman]

Originally Posted by gjordan

I have tried to stay out of this fast moving thread, but the question of (doesnt a CG license mean a certain level of competentcy?) sp? My first ticket was a 25 ton Masters. (Yes you can get one that small) In the class I took in the Virgin Islands there was a kid that had run a Boston Whaler at a resort, down wind to bring the windsurfing guests back when they could not sail back up wind. He didnt know that there were 360 degrees on a compass. He didnt know squat, but he passed the test and suddenly was qualified to run up to a 100 ton un-inspected vessel. This kid was not stupid, but was ignorant of all things other than an outboard powered skiff. My wife and I were the only people in the class to have done long passages. KIND OF SCARY. As far as RH goes, I am glad they are safe, but I am disgusted at the lawsuit. My 2 cents worth. _____Grant.

Everyone has to pass the ROR. It doesn't mean you remember them all, but at least have a familiarity with them (and know where to look if there's any question). Let's face it, a knowledge of the ROR is more than many yachties have. Beyond that, it's time on the water.

[tomfl]

Originally Posted by Ex-Calif

SNIP

If you want to "disappear" from the internet, find a <20X year old. They'll sort you out.

I learned a long time ago to set up multiple accounts with different names. No need to disappear anything.

[soverel]

manager, Phil Sexton, for a comment on the SIM card controversy. He was adamant that his staff would never discontinue service without first getting voice or email confirmation from a customer that they had received a new SIM card to use. "We would never do that," he says. "These phones are used for emergency purposes by 80% of our customers. Legally, I could not do that" — even if the account were in arrears

From lectronic latitude

Sent from my HUAWEI-M931 using Cruisers Sailing Forum mobile app

[tomfl]

Originally Posted by sneuman

Everyone has to pass the ROR. It doesn't mean you remember them all, but at least have a familiarity with them (and know where to look if there's any question). Let's face it, a knowledge of the ROR is more than many yachties have. Beyond that, it's time on the water.

Problem is that time on the water is not an undifferentiated commodity. Simply living on a boat anchored in a harbor counts as time on the water, even if the growth on the hull of the boat is big enough to reach bottom and render the boat immobile. Driving an outboard powered skiff picking up windsurfers at least means the person has been on a moving boat.

But a CG ticket does not mean the person holding it has any experience anchoring, or even has posted in threads about which anchor is better or how much chain is needed or how much scope is needed.

Personally I thing the second most important skill (picking the right weather window is the first) a cruiser needs is using ground tackle.

I know there are plenty of folks who have a CG ticket who know what they are doing. But there are also lots of folks who got their ticket through book learnin and would be at a loss if they had to cut away a crab pot that had fouled the prop.

[savoir]

Originally Posted by tomfl

Like the commercial says "it's on the internet so it must be true".

I did get the impression RH had professional experience on ships based on his avatar. But then my avatar probably gives the wrong impression about me, since if the truth be known I don't actually wear a tinfoil hat, in fact I don't actually own a tin foil hat.

So let's not get too excited about what someone posts on the internet. I wonder what impression folks would have of RH if his avatar showed him wearing a tin foil hat like the one in my avatar.

I'm more interested in what he DIDN'T post. References to skippering this and that around SD were everywhere. References to IT work were much more thin on the ground.

[Dockhead]

Originally Posted by tomfl

Wondering what you consider the dollar limit for "the stakes are reasonably big".

Since the CG has said their costs were mitigated because the rescue including some training aspects an argument could be made that that should be excluded.

It is hard to value the boat over $US100,000 and probably much less since to some extent it was damaged by RH's own actions before the sat phone was deactivated; and part of that damage may have been due to RH not adequately repairing the rot. RH has to assume some of the risk for taking his kid off shore knowing the kid was suffering from salmonella and being treated with antibiotics.

Let's also remember so far there seems to only have been a threat of a law suit. Something that has greatly damaged Whenever Comm's street cred and most likely cash flow. So even if RH prevails in a suit there may not be any assets to provide relief.

Maybe the lawyer will file and there will be hearings about forum shopping and jurisdiction will be settled and a court date will be set, after defendant asks for and gets every delay possible. But by the time Whenever Comm may well have petitioned for chapter 7 protection.

Even if the case does go to court and there is insurance to provide relief the insurance company may well have an exclusion if the company is found to have been grossly negligent.

Looks like a small time case being handled by a PI lawyer who was hoping for a quick confidential settlement. Problem is once there is a press release the cat is out of the bag.

Of course there is also the possibility that RH was simply looking for another fifteen minutes of fame.

All of this may well be true!

There is no hard and fast definition of how big a lawsuit needs to be to be worth using some legal resources. But this is not necessarily a "small time case" -- if the lawyers are allowed to run hog wild, this can easily go into the millions. The value of the boat is not the only thing at stake. Of course even "into the millions" is not necessarily a big case, but the prospect of a contingency fee in the $300k -- $500k range already justifies a fair amount of legal work, if the case is good, and some reasonably good lawyers will work on a case like that.

Most businesses will have liability insurance for at least a few million dollars, and usually the insurance company will be participating in the defense.

[Ex-Calif]

Originally Posted by soverel

manager, Phil Sexton, for a comment on the SIM card controversy. He was adamant that his staff would never discontinue service without first getting voice or email confirmation from a customer that they had received a new SIM card to use. "We would never do that," he says. "These phones are used for emergency purposes by 80% of our customers. Legally, I could not do that" — even if the account were in arrears

From lectronic latitude

Sent from my HUAWEI-M931 using Cruisers Sailing Forum mobile app

Interesting. That was a quote from May and sorry for the link cross post but it appears to be salient the conversation here.

Latitude 38 - 'Lectronic Latitude

The article also mentions another boat that had a "similar" issue. that was able to "work it out" with SPS via shore based crew.

This would seem to contradict what Sexton said.

This week we were alerted that the San Diego-based Alden 64 Nirvana, which is currently crossing to the Marquesas, also lost phone functionality, apparently for a similar reason. In that case, co-owner Julie Mitchell, acting as shoreside support for her husband Gary, was able to work out a solution with the sat phone provider, SatellitePhoneStore.com, and Gary's phone is fully functional again as he continues west.

[tomfl]

Originally Posted by soverel

manager, Phil Sexton, for a comment on the SIM card controversy. He was adamant that his staff would never discontinue service without first getting voice or email confirmation from a customer that they had received a new SIM card to use. "We would never do that," he says. "These phones are used for emergency purposes by 80% of our customers. Legally, I could not do that" — even if the account were in arrears

From lectronic latitude

Sent from my HUAWEI-M931 using Cruisers Sailing Forum mobile app

what issue

sorry did not see above post

[lancelot9898]

It's difficult for me to see how loss of the sat phone caused the loss of his boat. In fact it could be argued that the loss of the phone actually helped save his daughter's life.

[tomfl]

Originally Posted by Dockhead

All of this may well be true!

There is no hard and fast definition of how big a lawsuit needs to be to be worth using some legal resources. But this is not necessarily a "small time case" -- if the lawyers are allowed to run hog wild, this can easily go into the millions. The value of the boat is not the only thing at stake. Of course even "into the millions" is not necessarily a big case, but the prospect of a contingency fee in the $300k -- $500k range already justifies a fair amount of legal work, if the case is good, and some reasonably good lawyers will work on a case like that.

Most businesses will have liability insurance for at least a few million dollars, and usually the insurance company will be participating in the defense.

Not sure what policy Whenever Comm has but as I posted earlier it would be a shock if it did not exclude gross negligence on the part of the insured. I can's see RH prevailing absent gross negligence and even then the relief would probably be reduced due to RH's reckless actions and failure to adequately repair the boat before leaving. $US300k sound way high to me.

I am still betting this never goes to court and that Whenever Comm seeks chapter 7 protection.