Soundings Magazine Article Continues...
Soundings Magazine Article
By Jim Flannery
May 2001 issue
Bruce McAllister, chairman of the Miami Maritime Arbitration Council that heard Kappele’s case, says experience has pretty well shown that arbitration is faster and cheaper than going to court, and produces generally satisfactory results. “If Mr. Kappelle believes he could have gone to court and gotten a better result in a shorter time for less money — we’ve learned in the general run of cases — the odds are he’s wrong,” says McAllister, lead admiralty attorney at Steel, Hector & Davis.
“By definition you have someone [the salvors] operating under difficult circumstances,” McAllister says. “You have to see if they did the best they could. If they did the best they could, the law gives them a lot of leeway.”
This is to ensure fairness to both sides. “That’s one of the great things about arbitration,” McAllister says. “In court, you never know what judge you’ll get. In arbitration, you appoint one of the arbiters and get half the say in choosing another. You get 50 percent of the vote. If [your appointee] is bad, it’s your own fault because you get to appoint him.”
His yacht, Mariner, went over a rock reef onto the beach on a full-moon high tide in a heavy swell, which put a lot more water under the hull going onto the beach than normally would have been there. Kappele maintains that the salvors didn’t respond quickly enough and missed the opportunity to pull Mariner off the beach and back over the reef on that same tide, when the water was so high. He says they also refused to put a line on the mast so they could tip the boat over and slip it over the reef with keel kanted. He doesn’t think they performed professionally.
Beck says he gave it his best effort but couldn’t get Mariner back over the reef. “When it fell down on the back side of the [rock] ledge, there was no way to get it back on the ledge without lifting a 60,000-pound boat,” Beck says. He attempted the salvage with 32- and 40-foot towboats powered by twin 225-hp diesel engines.
“The problem Mr. Kappele had, was no insurance,” Beck says. No other salvors wanted to get involved because of that, he says. One could have brought in two big tugboats to help, but he wanted a $25,000 cash deposit. Beck did not secure Mariner in the surf overnight, a lapse the arbiters decided contributed to the mast snapping as the boat washed back and forth in the pounding surf. The panel held Towboat of the Palm Beaches liable only for the mast damage and not for the whole loss. After two days, Beck told Kappele he couldn’t do any more. Kappele found a second salvor to try to move the boat, but he failed as well. “I was quite devastated by the whole thing,” Kappele says.
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Caroline Ajootian, consumer affairs advocate for BoatU.S.,
which manages an arbitration program for the boaters it insures, agrees.
“It’s the lowest-cost, quickest way to resolve a dispute,” she says. McAllister says in Kappele’s and other cases the issue often is not really the arbitration process but a misunderstanding of salvage law.
Kappelle remains unconvinced that his case received a fair hearing.
Richard Beck, president of Sea Tow of the Palm Beaches, counters that he and his team worked as fast as they could in dangerously heavy surf preparing the boat to be pulled off, and couldn’t put a line on the mast because a stay snapped when Mariner ran aground, leaving the stick poorly secured to take that load.
