Rebel Heart Lawsuit

[su2014]

Whenever.com which is provider blaims "middleman". employee comments are inaccurate regarding billing and credit card issues. This was link by EX-Calif and makes lawsuit winnable. Another yacht in vicinity according to latitude38.com article had same problems. Ihope they win lawsuit and start again. Sell me a "safe plan" sat-phone contract and fail then i will sue as well. Have sued before and won and wont get rolled over ever again by their lies and false promises. SAY nothing without lawyer approval or get lawyer to say everything is smart.After all renmember that we still got time to make money but do we still got enough money to make time. TIME IS PRECIOUS. hope you settle fast RH.

[letsgetsailing3]

Originally Posted by sugarbaby-dot-c

Whenever.com which is provider blaims "middleman". employee comments are inaccurate regarding billing and credit card issues. This was link by EX-Calif and makes lawsuit winnable.

How does the standard finger pointing make it "winnable"?

Seems to me two things need to be proven. That the SIM card incident was negligent on the part of whenever.com, and that the replacement of the SIM card was directly and wholly responsible for the loss of the boat. Whenever is bringing into question whether they're even the right company to sue.

There seems to be a great number of other mistakes that might have also contributed to the loss of the boat, so even if Whenever is found to be liable, it would come down to assigning percentage of liability. Given that this was RH's first Pacific crossing, I would think the Sat phone company would try to make the argument that they had insufficient crew for a safe crossing to begin with, while tending to two very small children, one of whom had been sick the month before.

If you assume that you need one full-time adult to watch the two children at all times, how many additional crew do you need to safely sail the boat and keep it in good repair on a 24 hour, full-time schedule? Was the crew competent, and had they done the Pacific crossing before? Was all of the other equipment in good repair? Did they have an SSB, and if so, why didn't they use the SSB to call for help?

Seems to me that in order to prove the service provider liable, RH would also have to prove that they had all the other bases covered, and they may well come up short on that end.

So RH must hope for a settlement based on the calculation that mediation is judged by Whenever to be more costly than a settlement. In any event, I wouldn't think Whenever would be in any hurry to accept any liability or to settle.

It's interesting to note the public posturing was originally for the cost of the rescue, but the actual suit was for their own damages. I don't know if that bodes well, as they started out with an obvious bluff, though that may have simply been for the TV audience.

[h20man]

Originally Posted by Ex-Calif

That's a pretty clean example. Let's modify it slightly.

You have a boat with VHF, HF and EPIRB installed.
You (normally ) get weather & communicate from your HF radio
You invite me as crew to sail from Mexico to French Polynesia
I bring my satphone.
You HF goes down and we decide to continue because we can get weather from my satphone.
My satphone is cut off
We lose the boat in the hurricane
Who gets sued?

Other than being married, this is pretty much the relationship between Charlotte (boat owner) and Eric (Satphone owner).

And why you would have to sue me (satphone owner) and I would have to try and get mine from the satphone provider. Oh, and this is why I have a $1M smooth liability cover on my personal actions.



I think it's been stated that the service was never suspended for non-payment.

Eric did have "billing issues" - He stated there were differences of opinion about data usage and data plans.

I am guessing with their blogging, email and all that their usage was a lot more than "planned" and they were getting some big bills.

Hell, since you have 1M in liability... please come sail with me...

But.. to be fair.... your example is not the same.. it would be if you had publicly been complaining earlier about your sat phone, saying it had been cut off twice... issues.. and that this would not bode well for a long journey.... and you do not rely on it save for biz calls.

And now.... post factum... you are saying that it was the 'reliability' that you were counting on in a life and death situation....

That is going to be the big issue.... plus the assumption that the boat would never have made it in the condition it was in.. and it was a blessing in disguise that his daughter fell ill.... as she saved them all.....

[Ex-Calif]

Originally Posted by h20man

Hell, since you have 1M in liability... please come sail with me...

But.. to be fair.... your example is not the same.. it would be if you had publicly been complaining earlier about your sat phone, saying it had been cut off twice... issues.. and that this would not bode well for a long journey.... and you do not rely on it save for biz calls.

And now.... post factum... you are saying that it was the 'reliability' that you were counting on in a life and death situation....

That is going to be the big issue.... plus the assumption that the boat would never have made it in the condition it was in.. and it was a blessing in disguise that his daughter fell ill.... as she saved them all.....

Yeah - neither my what if or the one I was responding to have any relation to the RH case.

Letgetsailing's 2nd paragraph is the heart of the RH matter.

My what if (I violated my own rule about not playing what if BTW) was simply to point out the relationship of the boat owner (Charlotte) and the satphone owner (Eric) - "if" they were not married.

In my what-if it is tougher (if not impossible) to connect the satphone company if the 3rd party (owner) loses their boat because the 2nd party's phone stopped working.

What if games never play out the same. We'll have to watch for Whenever's response to the filing.

(Regards the $1m liability - It was weird in this day and age to be offered but this was a benefit offered by the company years ago - of course I pay the premium but it's nice to have an umbrella in this litigious age against my stupidity - I am clearly getting the better end of the deal - LOL...)

[Dockhead]

Originally Posted by Ex-Calif

This is a key observation.

This wasn't a passive failure of equipment (Diesel engine, GPS etc...)

The "action" of turning off the service needs to be proven to be "grossly negligent" on the part of the satphone company.

Not necessarily. Ordinary negligence can also be the basis for a claim for damages in tort.

In the contract Eric signed, there was apparently a waiver of liability for ordinary negligence, besides consent to jurisdiction in Florida. Both of these things would be fairly hard for the phone company to enforce, but Eric's (and Charlotte's) lawyer neatly sidestepped the issue by making Charlotte the plaintiff. This will save them the trouble of either proving gross negligence, or proving that the waiver of liability is not valid, and saves them arguing about jurisdiction. Naturally they will vastly prefer being in a California court, which is much more convenient (and hence cheaper), and California courts are much more aggressive in defending consumers than the courts of just about any other state.

It looks to me like a fairly strong case according to the facts which we know. Of course, there may be other facts we don't know, so it's dangerous to jump to final conclusions at this stage.

[Dockhead]

Originally Posted by letsgetsailing3

. . .

Seems to me two things need to be proven. That the SIM card incident was negligent on the part of whenever.com, and that the replacement of the SIM card was directly and wholly responsible for the loss of the boat. Whenever is bringing into question whether they're even the right company to sue.

There seems to be a great number of other mistakes that might have also contributed to the loss of the boat, so even if Whenever is found to be liable, it would come down to assigning percentage of liability. Given that this was RH's first Pacific crossing, I would think the Sat phone company would try to make the argument that they had insufficient crew for a safe crossing to begin with, while tending to two very small children, one of whom had been sick the month before.

If you assume that you need one full-time adult to watch the two children at all times, how many additional crew do you need to safely sail the boat and keep it in good repair on a 24 hour, full-time schedule? Was the crew competent, and had they done the Pacific crossing before? Was all of the other equipment in good repair? Did they have an SSB, and if so, why didn't they use the SSB to call for help?

Seems to me that in order to prove the service provider liable, RH would also have to prove that they had all the other bases covered, and they may well come up short on that end.

So RH must hope for a settlement based on the calculation that mediation is judged by Whenever to be more costly than a settlement. In any event, I wouldn't think Whenever would be in any hurry to accept any liability or to settle.

It's interesting to note the public posturing was originally for the cost of the rescue, but the actual suit was for their own damages. I don't know if that bodes well, as they started out with an obvious bluff, though that may have simply been for the TV audience.

Eric does not indeed have to prove that the loss was "wholly" caused by the phone company's negligence. He just has to prove that he suffered damages proximately caused by the phone company's negligence. If the damages were contributed to by Eric's fault or negligence, then this will usually not bar a recovery -- neither Florida nor California has a pure contributory negligence rule. It means that if the loss was caused 50% by Eric's negligence, and 50% by the phone company's, then Eric will get 50% of the damages from the phone company. For example. This is fairly cold comfort for the phone company (or its insurer), because the claim for damages can be inflated with all kinds of things besides just the replacement cost of the boat.


I agree that the obviously insincere comments about trying to recover the costs of the rescue are not very attractive.

[letsgetsailing3]

Originally Posted by Dockhead

Eric does not indeed have to prove that the loss was "wholly" caused by the phone company's negligence. He just has to prove that he suffered damages proximately caused by the phone company's negligence. If the damages were contributed to by Eric's fault or negligence, then this will usually not bar a recovery -- neither Florida nor California has a pure contributory negligence rule. It means that if the loss was caused 50% by Eric's negligence, and 50% by the phone company's, then Eric will get 50% of the damages from the phone company. For example. This is fairly cold comfort for the phone company (or its insurer), because the claim for damages can be inflated with all kinds of things besides just the replacement cost of the boat.


I agree that the obviously insincere comments about trying to recover the costs of the rescue are not very attractive.

I don't think any reasonable mediator or court would find the satellite phone company anywhere near 50% liable for the damages (and add-ons). There are way too many other factors at play here.

This is why I think it may well end up in mediation or court. The RH lawyer will likely overplay this and swing for the fences, forcing mediation. It's either really lucrative, or not.

Not sending a subscriber a new SIM card is an inconvenience, not a life threatening situation. It's only life threatening if the subscriber made it that way.

It will be interesting to see how the legal system works in this case.

[valhalla360]

Did I miss something? When did we make the jump to the phone company being negligent (gross or otherwise)?

From my recollection, the phone company sent the new sim well before the trip, presumably to the address provided. The contract specifically stated that it is not an emergency device. So it sounds like they met their contractual obligations.

That doesn't mean an activist judge/jury won't ignore the law but it certainly doesn't seem to be a slam dunk.

[Stu Jackson]

Originally Posted by valhalla360

That doesn't mean an activist judge/jury won't ignore the law...

Like SCOTUS in Hobby Lobby and Citizens United?

[valhalla360]

Originally Posted by Stu Jackson

Like SCOTUS in Hobby Lobby and Citizens United?

A much different case where one law conflicts with another. That is a situation where the courts are meant to step in and determine which law takes precedence (not saying they got it right or wrong).

So what conflicting laws do you see with the RH case?

[su2014]

the following type could be off-thread i dread.years ago before sat-phones were small we re-activating a cell-phone ourselves off-shore using the SSB tele link-up. so i know that all that old/new sim card BS is BS. if another boat in same vicinity as RH could have their sat-phone re-activated with old simm card as latitude38.com article stated then not much has changed since then.the RH attorney should win this case unless incompetent. hope he is on the standard commission structure and RH pay nothing unless he wins. i would like to read what RH and the SAR team were discussing before the rescue boat arrived 3 days later. of course the SAR team sat-phones worked and if they assisted RH to get his/her sat-phone working and were unable then that is not good for whenever.com in this "contract law dispute". fairwinds and godspeed.

[fryewe]

Originally Posted by Stu Jackson

Like SCOTUS in Hobby Lobby and Citizens United?

Are you referring to the majority or minority opinion? Heh...

Never mind...off topic.

[Dockhead]

Originally Posted by letsgetsailing3

I don't think any reasonable mediator or court would find the satellite phone company anywhere near 50% liable for the damages (and add-ons). There are way too many other factors at play here.

It is impossible to judge from these armchairs. There are complex rules which govern how damages are caused, from a legal point of view, and which govern what is allowed to be submitted as evidence. We do not know all of the facts, and any number of things we don't know could have a big effect on the outcome of the case.

It sounds like a pretty strong case to me, based on what we know, but given how little we actually know, that is pure speculation on my part, like everyone else's.

[fryewe]

Originally Posted by Dockhead

...given how little we actually know...

I recall a high visibility case a few years ago when a witness stated...when asked about statements that he made under oath that contradicted his diary entries that were part of the record...that he lied to his diary.

I wonder if the RH case - if it goes to trial - will be the first to use "I lied to my blog/to the forum" when the internet record differs from testimony.

[letsgetsailing3]

Originally Posted by Dockhead

It is impossible to judge from these armchairs.

It sounds like a pretty strong case to me, based on what we know, but given how little we actually know, that is pure speculation on my part, like everyone else's.

Exactly. Which makes my speculation about the strength of the case about as good as yours.

Seems to me that the entire case is based on proving that the SIM card was the cause of the rescue, and that in part depends on ruling out the other potential causes. The telephone company will likely want to prove that crew's decisions and the condition of the boat and equipment were also factors. Like I said in my post, I think the short-handed crew, and the fact that the child was sick the month before would also be considered factors.