Sunday, April 19, 2015

Keep a sharp lookout for the Super Yachts on our Chesapeake Bay!

Watching big ships move up and down the Bay is a fun pastime for those of us who spend our time on the Bay fishing or sun bathing. Each large vessel you see is required, by law, to hire a licensed Chesapeake Bay Pilot. The cost of a Bay Pilot can be up to $268/hour, with a two hour minimum. But the cost is well worth the benefit of avoiding an accident. The largest commercial ships can draw 47 feet in a 50 foot channel. Without the assistance of a licensed Chesapeake Bay Pilot the largest vessels might ground, or dump materials that would harm the delicate balance of aquatic life in the Bay.

But the law required large pleasure boats to engage a Bay Pilot, too. Any movement within the navigable waters of the Bay required a Bay Pilot, including a shift from a berth to a fueling pier. And as you might imagine, this cost has kept many large pleasure boats away from the Chesapeake region. “These vessels spend tens of thousands of dollars alone on one fuel bill, plus money on provisioning, local entertainment, tourism and repairs,” said Jessie Bowling of Baltimore Marine Centers, which operates five marinas in the harbor, according to an April 16, 2015 article in the Baltimore Sun. Many speculated that the old law was an economic anchor to be cut away.

State Delegate Peter Hammen, of Baltimore’s 46th District, which covers the entire waterfront for the Port of Baltimore, recently introduced an emergency bill to exempt large pleasure boats from the Bay Pilot requirement. Governor Hogan signed the measure into law on Wednesday, April 15, 2015.

This means that certain large pleasure boats are no longer required to hire a Bay Pilot. Specifically, this exemption covers:

1.       Recreational vessels less than 200 feet long, and those with less than a 12 foot draft.
2.       If they possess a valid federally issued cruising license; and
3.       If they are not engaged in commercial service; and
4.       If they are not carrying passengers for hire.

A “recreational vessel” is defined by federal law and means a vessel being manufactured or operated primarily for pleasure or leased, rented, or chartered to another for the latter’s pleasure. “Commercial service” includes any type of trade or business involving the transportation of goods or individuals, except for service performed by a combatant vessel. “Passenger for hire” means a passenger for whom money is collected and paid to any person having an interest in the vessel. Federal cruising licenses exempt pleasure boats of certain countries from having to undergo formal entry and clearance procedures such as filing manifests and obtaining permits to proceed as well as from the payment of tonnage tax and entry and clearance fees at all but the first port of entry. These licenses can be obtained from the U.S. Customs and Border Protection Port Director at the first port of arrival in the United States. Cruising licenses are normally valid for up to a year.

Now, for those of use spending our time on boats well under the 200 foot limits of this exemption, what does all this mean?  Hopefully, it means more traffic on the Bay.  By lessening the cost to travel up the Chesapeake to Baltimore and Annapolis, the exemption may well generate additional gross revenues for those businesses servicing large vessels and their guests.

It also means we must be much more aware of our surroundings while out on the open water of the Bay. If the new law has its intended effect, we will be joined by larger vessels moving without the assistance of trained Bay Pilots. These larger vessels will be in close proximity as we move in and around the Bay’s larger harbors and shipping channels. We all remain responsible for our own safety, so keep a sharp lookout, and wave to our new visitors!

Saturday, April 4, 2015

Limited representation arrives in Maryland!

Here is the current reality in Maryland if you are served with a court summons and complaint:

  • You didn't choose to get sued, and now you are forced to defend yourself and also assert your own claims against the folks suing you.
  • Your money is tight, and legal fees are not part of your budget. And this is true whether you are an individual or owner of a corporate entity.
  • You want to hire a lawyer to help through critical parts of your case, like drafting a court document or appearing for a deposition, settlement conference or motion hearing, but the lawyers you interview only quote fees to take over your entire case until the end--and you can't afford it!
Maryland's current court rules simply do not permit a lawyer to enter his appearance in your case for only one limited event- that one deposition or one court hearing.  The rules require entry of a general appearance which commits the lawyer to remain in your case to the end, unless he formally withdraws under a sometimes complicated process. The current rules do not guarantee against a lawyer being forced to continue in the engagement despite not getting paid by you. There are many examples where judges have required lawyers to stay in a case despite requesting to withdraw for non-payment.

As a result, you currently cannot hire a lawyer to appear with you for one limited event.

This will change on July 1, 2015 when the current rule is amended to permit the entry of a limited appearance under certain circumstances.  The guts of the new rule say that
[a]n attorney, acting pursuant to an agreement with a client for limited representation that complies with Rule 1.2(c) of the Maryland Lawyers' Rules of Professional Conduct, may enter an appearance limited to participation in a discrete matter or judicial proceeding...
 This is a huge deal for you, the consumer of legal services.  You may now  hire a lawyer to appear in court for one event.

How does it work?  First, you will have a written fee agreement with the lawyer that describes the limited purpose of the engagement. By way of example, an agreement may say "attorney agrees to appear for and with client at the motion hearing now scheduled for Monday..." And make sure the agreement anticipates some preparation time by the lawyer in advance of the hearing. You might also include language that covers unanticipated rescheduling of a hearing because of weather or illness.

Second, you will sign a form that gets filed in the court case which describes the limited engagement. The rule describes exactly what must be in the form, and you will just check a box and sign at the bottom. This form gives notice to everyone else involved in the case that your lawyer will only appear for a limited purpose at one event.

Third, you must pay your lawyer the agreed fee!  This part of the lawyer/attorney relationship does not change. But with the agreed limitation on the scope of his engagement, you will pay less!

We do anticipate some issues that the new rules cannot address, including how notices of limited engagement will be handled by the court clerks. The new rule means that the court's computer systems will have to change to track limited entries of appearance.  Even now, the court's computer system will continue to mail court notices to lawyers who have formally been withdrawn from cases, and so we do not expect the problem to lessen with this new rule. In fact, limited engagement lawyers should expect to receive continued court notices of events even when the limited engagement has ended.

And our beloved judges are another wild card.  They do have the authority (or, they believe they have the authority) to hold lawyers in cases to avoid prejudice to clients and the justice system, even when they have not been paid and requested to withdraw. It is conceivable that even where a proper limited engagement has been entered that a lawyer could be forced to continue in a case.

But these risks are slight, and we applaud Maryland's attempt to make civil justice more accessible and affordable to a broader range of folks.  You will still have to pay legal fees to hire a good lawyer suited to your limited event,  and you should expect to pay for the time a lawyer needs to prepare for the event. But with this new rule you may avoid having to shell over a traditionally large retainer that anticipates a long engagement.