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A will to win drives this maritime lawyer

Three decades of dissecting accidents on the water has made James Mercante a very cautious boater. The New York City-based maritime lawyer has handled such high-profile cases as the sinking of the Silverton 34 Kandi Won in Oyster Bay, New York, on July 4, 2012, in which three children drowned, and last year’s accident when a powerboat struck a barge moored at the Tappan Zee Bridge on the Hudson River in New York, killing two people.

James Mercante in his office at Rubin, Fiorella & Friedman

Mercante handled the salvage claim by a tugboat owner who was the first responder to the Staten Island ferry crash in 2003 in which 11 people were killed after the captain lost consciousness at the helm. He also had a piece of the 2010 Gulf of Mexico oil spill and last year’s SeaStreak Wall Street ferry crash in New York Harbor. Although he has made his reputation in the United States, he has also worked internationally, including cases involving piracy.

Mercante’s hundreds of maritime casualty cases have shaped his perspective on boating safety and affected how he uses Sea Trials, his 23-foot Hydra-Sports. “Because of the cases I’ve had and what I’ve seen — and I’ve seen it all — it definitely makes me a much safer boater,” Mercante says. “I won’t go out on my boat at night. I’m a very, very cautious and even a scared boater because of the cases I’ve been involved in, even though I have a license to drive a tanker.

“When we go out fishing on my boat and the seas are even a little bit rough, 90 percent of the people won’t turn around. I turn around,” he adds.

Mercante, 56, heads the admiralty practice at Rubin, Fiorella & Friedman LLP in Manhattan, where he leads a team of five other lawyers. He says his team has made law in jurisdictions that include New York, New Jersey, Wisconsin and Massachusetts. In Washington, D.C., Mercante obtained a $10 million recovery for a marine insurer client from the federal Oil Spill Liability Trust Fund in connection with a spill from the barge Morris J. Berman that he said was the largest oil spill in the history of Puerto Rico.

Mercante is a graduate of the U.S. Merchant Marine Academy in Kings Point, New York, and has sailed as a merchant marine officer. He has been a member of the Board of Commissioners of Pilots of the State of New York for 20 years and is a retired captain in the Navy Reserve with 20 years’ service.

Mercante abour Sea Trials

A resident of Long Beach, New York, Mercante writes the admiralty law column for the New York Law Journal and the “Sea Trials” column for Long Island Boating World. He also gets called upon as a maritime law expert on WNYW-TV, Channel 5 (Fox), in New York.

“He’s an expert in the field and is almost without peer,” says David Strauss, president of Axis Insurance Co. “His hands-on practical experience because of his [maritime] background, in addition to his legal background, really puts him in a unique position to be able to quickly determine the issues at hand and understand them, and at the same time be able to explain them to other parties and to us as insurers.”

Strauss says he has hired Mercante numerous times, including for the defense of Kevin Trainor, the owner of Kandi Won.

Mercante credits his tenacity to his father, Arthur, a professional boxing referee who during a five-decade career oversaw some of the biggest fights in history, including the “Fight of the Century” between Muhammad Ali and Joe Frazier, Ali-Ken Norton at Yankee Stadium and George Foreman-Frazier in Jamaica.

“He became the best in the world,” Mercante says. “People referred to him as the dean of boxing.”

Mercante has three brothers and says he “grew up in a very competitive family, with the will to win.” The boys boxed in the basement. “We had to do chin-ups before dinner. My father would sit at the head of the table after he had done his 20 chin-ups, and before we could sit down, each of us was required to do chin-ups. It became very competitive. I must’ve done over 5 million chin-ups in my life. I think I got my will to win, my competitive nature, from him.”

Mercante was involved in litigation as a result of the Staten Island ferry crash in 2003.

Mercante grew up in Garden City, New York, and attended the village high school, but when it came time to select a college “I had no say in it,” he says. “I was very proud one night to come home and tell my father that I had a wrestling scholarship to Hofstra University. My father sat at the head of the table and said, ‘That’s OK. You’re going to the Merchant Marine Academy.’ I cried. He said he had already talked to the wrestling coach, and it was all set.”

Mercante’s father, after serving in the Navy, had been the boxing coach at the academy in the 1940s. “He loved the military — he loved the Navy and the Merchant Marine Academy,” he says. “I think he saw I would be a good candidate for the Merchant Marine Academy. They got me a congressional appointment from some other state. He shaved my head, and a couple weeks later I was at the Merchant Marine Academy — and very angry at my father.”

His father’s college pick did come with a bonus. “We didn’t get our first boat until I went to the academy,” he says. “Since he had saved probably $100,000 on a college education, he decided to buy the four boys a 19-foot Renken with an inboard-outboard engine that we kept at Point Lookout. That was my first experience boating.”

After Kings Point, Mercante shipped out on his third mate’s unlimited license but didn’t like being away from home for long periods of time. So he went to work on tugboats, working the East Coast two weeks on, two weeks off for almost three years. “That I liked,” he says. “I had an ambition to become a pilot in New York Harbor, but it was tough to break into that at the time.”

So he opted for law school. He had developed an interest in law in high school when he read a book about a trial lawyer. “It’s a profession where you have a win-and-loss record,” he says. “I used to like to watch Perry Mason and other law shows.”

But he wasn’t sure about his proper course even after he was admitted to the bar, so he signed on for a trip to Bermuda aboard a tug. “It was a very rough trip,” he says. “I ended up getting very seasick. That’s when I decided I couldn’t do this anymore.”

One thing he was sure of was that he wanted to practice maritime law “so I could marry the two careers together,” he says. “I really didn’t know what a maritime lawyer did, but I liked the way it sounded.”

Mercante got his first job out of Tulane University law school through the attorney general’s honor graduate program and was hired by the Justice Department’s aviation and admiralty branch to represent federal agencies such as the Coast Guard and was trained by the government to be a litigator. “I had my first trial within two weeks of starting my job, and I hadn’t even been admitted to the bar yet,” he says.

After three years with the government, he went into private practice. “He’s tenacious, pugnacious,” says Michael Chalos, who defended Capt. Joseph Hazelwood in the Exxon Valdez case and has worked with Mercante on many cases. “If I were a litigant, I’d certainly want him in my corner.”

The Kandi Won capsize was at the center of one of his recent headline cases.

Carroll Robertson, claims manager for BoatUS, says she has hired Mercante many times. “Jim is really one of our most successful and favorite admiralty attorneys because he’s so knowledgeable,” she says. “He can bring people together and make a very strong argument on behalf of his client.”

And he understands the personal side, says Trainor, the owner of Kandi Won, whose daughter died in the 2012 accident. “Right after the accident happened, while we were trying to grieve, he was there to take care of reporters and anything else that went on, just taking all those worries away from me and my family. It meant a lot. As it went on, his expertise in deciphering all the details and data that came in was extremely helpful. Just explaining it to me in layman’s terms meant more than anything else.”

Mercante says working on marine accidents is like peeling an onion. “I like to peel away the layers [to find the cause], and when I get to the heart of it, it’s usually markedly different than what’s on the front page,” he says. “It’s not always the overcrowded boat or the drunken driver.”

He says he tries to visit the scene of an accident as soon as possible and quickly calls in outside experts. Then he develops alternative theories to explain a casualty. He sees each case as an opportunity to improve boating safety. “I try to make things better and safer,” he says. “With my cases around the country, I’ve probably saved a lot of lives by virtue of the things that I’ve discovered.”

In the Kandi Won case, he says, he discovered design flaws in the 34-foot Silverton that could contribute to instability. The official investigation blamed the capsize on overcrowding because of the 27 people on board. “It took the best experts in the country nearly a year to come out with a report after doing a stability test on the vessel to make the final engineering and mathematical determination that Kandi Won was overloaded,” he says. “Nobody on the boat felt it was overcrowded.” So he argues that the owner was not negligent.

Kandi Won didn’t have a capacity plate because the Coast Guard only requires them on boats smaller than 20 feet. Mercante supports efforts to make them mandatory on larger boats.

The Kandi Won accident led to the passage of New York’s first general mandatory boating education bill, which Mercante supported. “If safety measures are taken, I think that’s fantastic and a step in the right direction,” he says.

When he defended the insurer of the Uncanni — a Hustler performance powerboat that hit a marsh island and overturned on the south shore of Long Island in 2009, killing the owner, the owner’s wife and a friend — Mercante says at first it was simply about an operator who was legally intoxicated.

“But when I went out there on my own boat, I discovered where the boat hit the marsh because I knew to go out there at low tide,” he says. “The police investigators didn’t even discover where the boat hit the marsh or how the accident happened. I discovered by looking at the buoys that one of them had a light that was cracked on top of it and I’m thinking, maybe the Hustler contacted this buoy in darkness.”

He decided to look into the buoys. “It turned out it was the most discrepant-buoyed channel on Long Island,” Mercante says. “Now there is much more scrutiny by the municipalities and the Coast Guard about maintaining the buoys and making sure the charts … are updated.”

Similarly, when he took the case of Jojo John, the driver of the boat in the Tappan Zee Bridge accident last summer, it was all about a drunken operator, he says. When alcohol is involved, he says, “that’s where the investigation ends — they’ve found the culprit.” (John has pleaded quilty to two counts of vehicular manslaughter.)

But in the bridge case, Mercante says, it also was “about very, very poorly lit barges. … And he could’ve made it across the river stone drunk … but the barges were either unlit or so poorly lit as to be a deadly hazard to navigation.

“It was really like a low-to-the-water black steel wall in the middle of the river,” he says. “There had been complaints about it before the casualty. Commercial people said that if you didn’t see the barges on radar, you never would’ve seen them. Nobody on that boat saw them.”

Mercante says the lighting on the barges was solar-powered and that there had been several days of overcast skies before the accident. “The barges had a tremendous amount of construction equipment and sand and debris on them,” he says. “The lights are required to be seen for 360 degrees, and there was absolutely no way these lights could have been visible for 360 degrees because of all the equipment blocking the lights.”

Since he raised the lighting questions “barge companies now are asking the Coast Guard how much light they can put on. I think there will be a lot fewer casualties and deaths as a result of some of the investigations and exposures I have made in my cases.”

Another outcome of Mercante’s work is that companies on the other side of litigation often hire him for future cases. “That’s one of the biggest compliments you can get as an attorney,” he says.

Mercante sees the irony that his caseload keeps him from spending as much time as he’d like on Sea Trials, which he has owned for 10 years and docks in Point Lookout, New York. “I use it for fishing, clamming,” he says. “I love to cook, so I like to go out and harvest my own clams.”

He’s so busy with work that last season he took the boat out only about eight times.

To compensate, he often turns Sea Trials into a floating office. “A lot of times I sit on my boat at the dock and read depositions,” he says.

August 2014 issue



Defensive Driving

With new boaters everywhere, accidents are up. experienced skippers need to think smart to stay safe