The Vessel as She in Literature and
the Law

by Twain Braden

The beat poet Gary Snyder made several trips across the Pacific in the 1960s on oil tankers, a class of ships that could be forgivably described as being the least person-like, let alone lady-like, ships afloat, except perhaps for mud dredges or garbage scows. Yet here is Snyder comparing the ship to the human body and its living systems:

the ship burns with a furnace heart
steam veins and copper nerves
quivers and slightly twists and always goes—
easy roll of the hull and deep
vibration of the turbine underfoot.

Snyder wrote his poem Oil during our country’s nascent environmental movement, when he was shocked at the devastation of forests and the horrors of the global oil economy. He nonetheless saw (and felt) life in the ship’s burning furnace as she rolled through the long swells of the vast Pacific Ocean.

The same is true of the main character of John McPhee’s book Looking for a Ship, Captain Paul McHenry Washburn, who speaks lovingly, sotto voce, to his command — a 665-foot containership called Stella Lykes.

At his most loquacious, Washburn even acknowledged to McPhee that when he had his hand on the ship’s rail, that he was “associated with a living thing, and that I cannot only control it but that I have something going with it, we understand each other. It isn’t all me taking and her giving. I talk things over with her, and almost ask her, ‘Hey, can we do this?’ I am not just demanding what this ship can do for me, I’m asking what I can do for her.” Notice the transition from “it,” when he’s likening the ship to an inanimate object that might be controlled, to “her,” when the vessel comes alive through an understanding that there is a respectful relationship between them. McPhee called this Washburn’s “unending dialogue” with the ship, which, according to Washburn could even transmit weather warnings to him personally through subtle tremors in her hull.

Maritime law encourages this analogy. In fact, the Federal Rules of Civil Procedure, hardly a font of poetry and literary allusion, give us Rule C of the Supplemental Rules, which, in moribund black and white, gives the maritime practitioner a choice: bring a claim for a maritime lien against a person or legal entity such as a corporation (in personam) or bring suit against the vessel herself (in rem) — or both. It states, in its typical spare prose: “An action in rem may be brought: to enforce any maritime lien…”

There is an economic reason for this rooted in the annals of maritime law. By personifying the vessel, we encourage swift movement of ships into and out of port because local businesses need not be hindered over the concern as to whether the person or business ordering the supplies, such as bunker fuel, groceries, or mechanical repairs, has worthy credit. The ship herself — her value — can be relied upon to pay her bills, if necessary. A lien for these services, whether for “necessaries,” such as goods or services, or salvage or personal injury, attaches to the vessel immediately upon occurrence of the event, irrespective of whether the lien is recorded with the National Vessel Documentation Center or wherever the ship is flagged. As a matter of law, the lien attaches like a barnacle and can only be scraped off by satisfaction of the lien or a judicial sale by U.S marshals. Here is Prof. Thomas J. Schoenbaum on the subject:

“The lien attaches simultaneously with the cause of action and adheres to the maritime property even through changes of ownership until it is either executed through the in rem legal process available in admiralty or is somehow extinguished by operation of law.” A maritime lien is therefore said to be secret from the moment the goods or services are delivered to the vessel, and its existence is not compromised through a change of ownership of the vessel, even to a “good father purchaser.” This is different from the “use it or lose it” doctrine in shoreside “dirt law,” in which a mechanic’s lien is subject, and must adhere, to strict recording requirements or it loses its validity. A maritime lien, in contrast, is merely subject to the nebulous doctrine of “laches,” which roughly means an extended passage of time such that makes it reasonable for the lien to somewhat dissipate in strength through the passage of years. The lien is still there, but a court can consider the circumstances when there is limited value in the vessel in light of multiple, competing lienholders.

So how is this personification of the vessel? Because we endow the vessel with her own personhood capable of being sued in her own capacity in rem. If we have been offended by the vessel’s lack of payment delivered to her — for example, we hauled her out of the water and repaired her engines for the sum of $10,000 — we subsequently bring suit against the vessel in rem, to recover the amount. In the complaint itself, filed in federal court, we state the name of the vessel and then add certain qualifiers, “her engines, boilers, tackle, electronics, and appurtenances, in rem, Defendant,” to eliminate any question about exactly who we mean.

One final example from one of the great 20th century novels of the sea and ships, The Captain, by Jan de Hartog. The story is set during World War II when Allied vessels were transiting the North Sea between allied countries in the west and Murmansk, Russia, on the Barents Sea. The Allied ships were decimated by German U-boats and airplanes. The vessel in question was the ocean tug Isabel Kwel. Her young captain, Martinus Harinxma, was lying in his bunk one evening, pondering his relationship with the tug during the madness of war. “I had never felt quite so relaxed and happy and at home on a ship before; I felt as if I were a part of her, as if we formed one body, of which I was the center of awareness, all nerves and tendons and veins and viscera, reaching into the remotest corners, were concentrated in me. As I lay there, eyes closed, I could interpret every sound, trace every tremor to its origin. It was a healthy body, full of strength….”

So the next time you’re delivering goods or services to a vessel, you can be forgiven for offering to her owner an observation of the vessel’s personal attributes, which, like a person, can be a complicated mixture of good traits and bad. The law will support you.

Twain Braden is a partner at the Portland firm Thompson Bowie & Hatch, LLC, where he specializes in maritime and admiralty law: tbraden@thompsonbowie.com.