Obtaining a survey before purchasing a vessel is always advised. Any offer to purchase a boat should always be made contingent on a satisfactory survey and in some cases a sea trial. Courts have recognized the critical role of marine surveyors in maintaining safe sea travels.

Hull Survey vs. Full Survey

The type of survey required will depend on the boat age, condition, value, and date of last survey. It may be that a hull survey is required, or a full survey to include the rig, sails and engine and the equipment on board. If the engines form a substantial part of the value of the boat, you may want to consider having a separate detailed engineer’s report. Or if there are particular technical aspects which you require verification on, make sure to instruct the surveyor on these aspects.

Seaworthiness

Continue Reading Maritime Law: Why is a Survey Needed When Purchasing a Vessel?

Recreational boat owners in Florida are required to either register their vessels with the state of Florida or document their vessels with the U.S. Coast Guard. There are many factors to consider when choosing between state registration and U.S. documentation.

Registration

Chapter 328, Florida Statutes, designates that DHSMV is responsible for issuing vessel registrations and titles. Applications for titles and registrations must be filed at a county tax collector or license plate agent office. The certificate of registration must be carried on board the vessel whenever it is in operation and the decal must be displayed near the registration number on the port (left) side of the vessel. You can find more information on the Florida Highway Safety and Motor Vehicles website.

Documentation

Continue Reading Maritime Law: What You Need to Know About Registration and Documentation Before Buying a Boat

In order to better protect yourself and your property, it’s a good idea to have a discussion with your insurance agent and/or your maritime lawyer about your vessel, its intended use and operation, the potential for claims and the marine insurance coverage that may be available to you.

Hidden Exclusions

Many people with significant claims after an accident, that could and/or should have been insured against and covered from, are not covered because of an exclusion or limitation that was buried in the insurance policy. These denials often could have been avoided had the person purchased a more favorable insurance policy from a different carrier. The insurance policy need not cover just the vessel, but also needs to cover you, and your passengers, in the event of an accident. If there is a serious accident, any good personal injury attorney will want to go beyond the policy limits and try to hold you personally liable.

Who, What, Where

Continue Reading Maritime Law: What You Need to Know About Insurance Before Buying a Boat

Whether you are buying a boat for the first time, or simply have not been boat shopping in ages, it is important to understand the technicalities of purchasing a boat. Over the next several weeks, we will discuss a few issues to consider, including insurance, registration and documentation, surveys and contract terms. Today, we will begin the series discussing options to obtaining title to a new boat or vessel.

How to Obtain Title to a New Boat

All vessels on Florida waters, unless expressly exempted, are required to have a Florida vessel title issued by the Florida Department of Highway Safety and Motor Vehicles. A purchaser of a new or used vessel has 30 days to title and register that vessel. During this 30 day period, the owner must have proof of the date of purchase aboard the vessel. Operating an unregistered vessel after 30 days is a second-degree misdemeanor. The requirement applies to stored vessels as well as those being operated.

Even if you plan to tie your vessel to a dock and never use it, the requirement still applies. However, there are exemptions. For example, vessels used exclusively on private lakes and ponds, non-motor powered vessels under 16 feet in length and federally documented vessels are exempt from the state title requirement.

Maritime Liens

The passage of vessel title works just like auto titles in Florida. When purchasing a vessel, there are many issues that a purchaser should be aware of regarding the title. Specifically, that a purchaser of a vessel takes that vessel with all maritime liens and encumbrances whether known or unknown. A lien is a cloud on title and may restrict the free transferability of a recreational vessel. An encumbrance, on the other hand, generally refers to mortgages or security interests created by written agreements.

Before purchasing a vessel, the prospective purchaser should obtain an Abstract of Title from the U.S. Coast Guard National Vessel Documentation Center. The Abstract of Title should identify any mortgages or claims of lien recorded with the Coast Guard. However, because some liens are secret, the Abstract of Title may not accurately represent all existing liens on the vessel. A purchaser should require, and almost all boat transactions include, a representation from the seller that the vessel is free and clear of all liens and encumbrances.

Unfortunately, sometimes there is no way to assure the purchaser that the vessel is being purchased lien free. Unlike real property, there are no title insurance companies nor are there mandatory requirements for recording maritime liens. Therefore, the only means by which a purchaser is assured of a lien free vessel is by the representation of the seller that the vessel is free and clear of all known liens and encumbrances. A purchaser should, to the extent possible, check with those who may have performed work or provided services to the vessel or with whom the vessel’s owner was dealing in the months preceding the sale. Additionally, the purchaser should demand written assurance that the seller will indemnify the buyer against all claims that may be brought against the purchaser for liens that attached prior to the sale.

Title Concerns When Purchasing a Boat with a Second Party

If you are married, or purchasing the vessel with friends or for a business, questions may arise about whose name should be on the title. Holding title to a vessel or personal watercraft in joint name with your spouse is not recommended. By doing this you open up all assets you hold in joint name to attack in the event of a lawsuit.
If you title the vessel in your name alone, you have exposed assets that only you own to a lawsuit. Because Florida has such strong asset protection laws for LLCs, ownership by a limited liability company (LLC) or a full corporation, is often advised over private ownership because ownership by an LLC protects, if not insulates, against liability.

Please feel free to contact me for additional information about purchasing a boat at amanda.ross@henlaw.com or by phone at 239.344.1249.

Dan Schwartz of the Connecticut Employment Law blog posted yesterday about an interesting medical marijuana case in Connecticut. For the first time, a Connecticut court ruled that an employer could not refuse to hire an applicant simply because she was a medical marijuana user, despite the employer’s drug-free workplace program. This applicant, who used medical marijuana for PTSD, had her offer revoked after she tested positive for marijuana on the pre-employment drug screen. She then sued for discrimination. In ruling for the applicant, the court focused on the anti-discrimination provision in Connecticut’s medical marijuana law:

[U]nless required by federal law or required to obtain funding: . . . (3) No employer may refuse to hire a person or may discharge, penalize or threaten an employee solely on the basis of such person’s or employee’s status as a qualifying patient or primary caregiver under sections 21a-408 to 21a-408n, inclusive. Nothing in this subdivision shall restrict an employer’s ability to prohibit the use of intoxicating substances during work hours or restrict an employer’s ability to discipline an employee for being under the influence of intoxicating substances during work hours.

Conn. Gen. Stat. § 21a-408p(b)(3) (emphasis added).

Does this decision have any impact on Florida employers?

Continue Reading Connecticut Court Finds Employer Discriminated for Refusing to Hire Medical Marijuana User: What Does This Mean for Florida Employers?

Rosen Hotels and Resorts, Inc. (“Rosen”) operates a number of hotel properties in the Orlando area. Rosen’s subsidiary company, Rosen Millennium, Inc. (“Millennium”) provides IT support to Rosen, including data security.

In early 2016, Rosen learned of a possible data breach involving customer credit card data. A forensic investigation located malware on the company’s payment network, which indicated a third-party had hacked into the system and determined that customer credit cards used between September 2014 and February 2016 may have been compromised. In March 2016, Rosen notified potentially impacted customers of the data breach.

Duty to Defend

Continue Reading Federal Court Clears Travelers of Liability in Hotel Data Breach Lawsuit

The Department of Labor just issued updated FMLA forms, good through August 31, 2021. No more using “expired” forms!  For anyone who was expecting “updated” to mean changed or improved…well, we are sorry to disappoint you – the only thing that was updated was the date! The forms are otherwise identical.

Continue Reading Department of Labor Releases Updated FMLA Forms

Guest post by John M. Miller, Esquire, Stockholder in Henderson Franklin’s Tort & Insurance Litigation Group

I recently spoke on the topic of “Establishing Social Media Policies, Contracts and Legal Advice for PR Professionals” to members of the Gulf Coast Chapter of Public Relations Society of America (PRSA) in Naples. Social media continues to be a hot topic for employers and thought it would be good to share a few items that were discussed.

In the Beginning

Under the Obama administration, the National Labor Relations Board (NLRB) developed an employee-favored social media policy. The NLRB broadly protected private employees in their social media activity. Private employees could not be fired or punished for posting certain information on social media. Specifically, private employees are permitted to engage in “concerted activity” which is a fancy term for discussing their working conditions on social media. But, what does it really mean?

What exactly may an employee say about his or her work on social media without being reprimanded or disciplined?

Continue Reading Can Employers Regulate an Employee’s Social Media Content?

Sales taxes have always been major revenue sources to the states, including Florida which has a state-wide 6% sales tax. However, for years, consumers have turned to the Internet to make purchases in part to be able to avoid this because most Internet sales transactions were not subject to any state or local sales tax. This changed on June 21, 2018 when the United States Supreme Court issued a 5-4 decision in South Dakota v. Wayfair overturning earlier decisions and paving the way for states to collect sales taxes from online retailers for sales of goods to in-state residents.

Previously, a state could not require an out-of-state or online retailer to collect sales taxes from its customers if that retailer did not have an actual, physical presence within the state. Over the last 20 years or so, Internet commerce and retailing has become a major part of the U.S. economy. Since online retailers without a physical presence in a state were not required to collect sales taxes, this led to trillions of dollars in online sales transactions going basically tax free. This had a direct impact on states’ sales tax revenue.

Impact of Wayfair Decision

In Wayfair, the Supreme Court recognized how the Internet has changed the economy and how consumers shop and also the realities that these changes have wrought to many states’ budget shortfalls. Now, under Wayfair, an online retailer does not need to have any actual physical presence within a state in order to be required to collect sales taxes. It will be up to the individual state to determine whether it wants the online retailer to collect sales tax or not.

On one hand, consumers stand to lose a bit under Wayfair because now Internet purchases can be subject to sales taxes at the point of checkout. In Florida such purchases have been subject to tax all along, since the state technically requires the consumer to report and pay a “use tax” on any items where sales tax was not paid at the time of purchase. However, this regulation has not been vigorously enforced rendering Floridian’s Internet purchases essentially tax free. Going forward, if Florida requires online retailers to collect the sales taxes, those taxes will be added directly to the purchase price in the online shopping cart and paid by the consumer at checkout. This makes goods more expensive to the consumer.

On the other hand, many view this as a benefit to small business because small, local businesses with physical locations often lost sales to online retailers from consumers seeking to avoid sales tax. Post Wayfair, if the online retailer is required to collect sales tax at checkout, the playing field becomes a bit more level by making online purchases potentially little less attractive and bringing consumers back to local businesses, where at least they may not have to pay shipping costs as well.

Similarly, under Wayfair, states stand to benefit because they will be able to capture a tax revenue stream more efficiently than leaving it up to the consumer to voluntarily report and pay via use tax. This new revenue can help significantly to narrow budget gaps in some states.

Bottom Line

Regardless how one looks at the costs or benefits of Wayfair, the decision does significantly alter the current sales tax environment. While it may be some time yet before we see how Florida—or any other state—will react and how it will implement any new sales tax scheme, the landscape is certainly going to change. Henderson, Franklin will continue to monitor how things may change and our attorneys are available to discuss how these changes might impact your business.

On June 21, 1788 the U.S. Constitution was ratified. It contains a clause in Article I, Section 8 providing that Congress shall have the power to

promote the progress of science and useful arts, by securing for limited times to authors and inventors the exclusive right to their respective writings and discoveries.”

This led to the Patent Act of 1790, signed into law by George Washington in April of that year. Since the founding, patent protection has been afforded to “new and useful” processes, machines, articles of manufacture, compositions of matter, ornamental designs and even plant strains. Patent protection provides inventors the right to exclude others from making, using, selling or importing an invention throughout the United States without the inventor’s consent.

Continue Reading Ten Million Patents – What a Long Strange Trip It’s Been