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 A safe, legal port in a storm
Independence the best protection in a hurricane
By MARK ERCOLIN
Waterfront News Columnist
It’s been almost three years since Hurricane Wilma blew into South Florida. As of this writing, I remain relieved — like many of you — that another event has not yet visited our area, especially since many Floridians are still pulling out from the financial and physical mess that Wilma and Katrina inflicted in 2005.
Historically, hurricanes were on the Florida weatherscape long before Ponce de Leon declared Florida part of the Spanish Empire, or before Popeye coined the interjection “Well, blow me down!”
So it’s safe to say that hurricanes and tropical storms will remain an issue for Florida and boaters for many years to come, regardless of the global warming debate. And since we’re once again in hurricane season, it’s timely for boaters to review a few legalities before a storm approaches.
First, let’s look at the requirements for evacuating a vessel when a tropical storm or hurricane warning are posted.
In the past, quite a few boatyards and marinas ordered vessels to leave their facilities when a warning was issued to avoid property damage or incur liability. But safe hurricane harbors were often already reserved, leaving few places for smaller vessels to go.
Policy changed in the mid 1990s with the adoption by the Florida State Legislature of statute 327.59, which states in part: “...marinas may not adopt, maintain, or enforce policies pertaining to evacuation of vessels which require vessels to be removed from marinas following the issuance of a hurricane watch or warning ...”
That said, the statute goes on to allow marinas and boatyards to exculpate themselves from damages caused by remaining boats and to charge the vessel accordingly for resulting damage. Moreover, the statute also generally allows facilities to move remaining vessels and take whatever action they deem necessary to protect private property and the environment, and then charge the vessel for these efforts too.
This means that when the big storms come, most boat owners should be prepared to pay out of their own pockets for damage their vessel might incur or otherwise be responsible for, including damage to other boats and property, and any pollution costs and fines that might result.
Further, boat owners should be prepared to pay for work performed by a facility just before, during and, to a certain extent, just after the storm, to help mitigate damage to that vessel or other properties, even if these efforts are not totally successful.
The need for having sound insurance coverage before a hurricane arrives cannot be over emphasized. Hopefully, I don’t have to tell you that no one will write an insurance policy after a storm warning is issued — it’s just not going to happen! So, don’t delay.
“But wait!” you might say, “Why do I have to worry about a marine facility during a storm? Am I not allowed to moor my vessel at the nearest safe location in an emergency?”
The answer to this question is “yes” but with limitations. It is called Easement by Necessity and usually comes into play when a vessel on a normal voyage is forced to moor or beach due to unforeseen emergency conditions. In other words, you cannot take your boat out in anticipation of using such an easement and expect to be welcomed.
Case law holds that your boat will generally be strictly liable for any damage inflicted by its “trespass” while utilizing an easement. This means that “any port in a storm” could become an expensive proposition.
In the past I have also been asked if neighborhood boat owners are legally required to raft-up, the practice of boats tying off to each other for mutual protection. When properly done, this has proven to be an effective technique in minimizing damage. That being said, there is no legal requirement for any vessel to raft-up with others during a hurricane, even if it’s a tradition in certain neighborhoods or communities.
Keep in mind that not only does the rafting have to be done correctly, but generally each boat will still have to deal with their damage individually at the end of the event anyway.
So, basically, here’s the lesson: as an individual boat owner you should prepare as much for your boat’s safety as you possibly can before a hurricane hits, without relying on the efforts or the good will of others. Once you rely on others, your chances for mitigating damage to your boat may prove less and your costs might go up.
As Popeye might put it, “Well, blow me down!”
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Mark Ercolin is an admiralty attorney based in Fort Lauderdale.
The information offered in this column is summary in nature and should not be applied to specific cases or situations.
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