Changing Course: One Last Trip of a Lumper, Scalloper, Lawyer
by Mike Crowe
The attraction of commercial fishing includes independence, bursts of income, stretches of excitement, boredom, camaraderie, and homesickness. Once home there is soon the lure of another trip. It likely has always been this way for fishermen in this contender for the oldest profession and hands down the unwitting title of the most dangerous job.
In the last century many have tried commercial fishing, but comparatively few have chosen it to be their life’s work. The last few decades have made it more difficult for those who would.
Maritime Attorney Patrick Flanigan commercially fished sea scallops for 20 years before going ashore for the last time to make a radical occupational shift. His law practice now deals with the things that were a part of the business during those 20 years. The federal Jones and Lacey Acts, wage and crew shares, land and sea injuries, insurance and shipyard claims, criminal cases, and disputes against NMFS, and other agencies are now his voyages.
Flanigan said, “I went commercial fishing after college planning to earn money for graduate school. But I enjoyed the nature of shipboard life, the team work, the excitement, and the pay for production. I went to sea and at the same time I was running from the land. The lifestyle worked because I did not know exactly what I wanted to do with my life. You could go on a fishing trip for 10-16 days, then you would be on shore briefly, and then you would go out again. Life was easy that way.”
“I started as a lumper on the docks in Cape May, New Jersey. A year later I got on a dragger out of Shinnecock, NY. I did that for my first winter and spring fishing experience, then I got on a scalloper out of Cape May. It was far more exciting. The team work, the money, the incentives were all a part of what kept me at it. Scalloping was also more scheduled in a way that I could plan and manage my shore time. I was able to develop a shore side business and continued to go fishing. During his 19 years of scalloping he fished out of every major port from Maine to Virginia and during the 1980’s with periods in Oregon and Alaska.
In the early 1980’s Flanigan left Cape May to scallop on the F/V Pursuit in Alaska, than later on the F/V Neptune in Oregon and Alaska. In 1987, he bought a scallop boat, F/V Allegiance, fishing mostly in New England. I lived on the boat a month at a time because trips were longer then, so I was away from home a lot. My family was in Swarthmore, Pennsylvania, 10 miles southwest of the Philadelphia.”
“By the early 1990’s things had gotten more and more difficult for scallop fishermen. I came to believe I could not make a legal living in the business. My experience was that you had to break the law, if you wanted to pay boat expenses and earn money for the crew.”
Flanigan said he had to weigh the risk of getting caught again violating meat counts, and what the financial consequences would mean to him, his family, and the crew. “I was basically looking at two realities. Over the last 20 years I was away from home a lot and now working in a fishery that was collapsing with considerable financial risks, and I was 42 years old wondering if this is what I wanted for another 20 years. There were also personal problems with alcohol that needed to be resolved. Fortunately I had alternatives, so I sold my vessel in 1994. It was hard to sell the boat and my future was still uncertain, but “I had an opportunity to exit and I took it.” said Flanigan. By 1994, his two kids were away in college and “my wife and I had time to catch up on all those years apart.”
Around 1995, with years of experience as a deckhand, captain and a boat owner, he was contacted by a law firm in Boston and asked to be an expert witness in a maritime case. “It was strange at first because it was a lawyer who once sued me as a boat owner for some bullshit injury claimed by a crew member, but I took the case,” said Flanigan. There were more cases as an expert, then in 1996, during one casual conversation in another lawsuit, one of the lawyers for the defense asked him if he had ever considered putting his experience to use in the law. It was the right time and place for the question. Flanigan said, “I distinctly recall when the lawyer asked me that question, it immediately felt right somehow. The practice of law made perfect sense to use my past physical experience and create a new future.”
In 1997 he began the process of getting into law school. After passing the entrance exams he enrolled in law school in 1998, and went to law school at nights and worked during the days. He graduated in 2002 and starting working as a greenhorn with a law firm in Philadelphia in order to get some “deck experience.” In 2008, he opened his own law practice.
Those years of fishing also gave Flanigan a view of and experience with the things that make the occupation the most dangerous. Asked about that side of the business, he said he did not want to make his experience sound like a reality show, but he had been on boats that caught fire at sea, had seen guys get seriously hurt, guys swept over board and saved. He regularly heard of the more tragic outcomes for other vessels working in the same hostile environment. “I feel very fortunate to have never lost anything important and only some money in those 20 years.”
While making a living fishing is always difficult, Flanigan said things are even more difficult for the individual boat owners. The fleet owners have their problems, but the problems are harder for the family operated business owner. There is the constant effort to keep the business afloat. It’s still dangerous and there are many more regulations now. “NMFS has always made fishing more difficult and there are always more and more regulations. The National Transportation Safety Board regulations will be putting the family owned fishing businesses under greater pressure too”, said Flanigan. “It is forcing some to try to find ways around these complicated and expensive regulations in order to make ends meet.” Fishermen are continuously changing to meet the demands of new regulations and it costs money to do that and mostly it means less fish.
Independent fishermen do not have the time to impact the regulatory process. The fishing industry operates in the short term, it’s based on “what you can catch this trip, but NOAA operates long term and has little concern for the short term consequences of their decisions. Fishermen need fish today to survive, not 5 years from now.”
The fleet owners have their problems too, but on the other hand they have strength to organize and lobby for their interests to a much greater extent. They follow the developing regulatory process, in some cases help steer the process, and thereby the outcomes of the regulations coming out of that process. At times they are even in direct opposition to independent fishermen because they have broader business interests.”
One result of this, said Flanigan, is that the independents are not truly independent. He said, “The fleet owners are able, through their ability to impact the regulatory process, to effectively divide and conquer the independents. Sectors and consolidation of ownership are good examples.” Fisheries are cut up into subcategories. Movement from fishery to fishery, which in the past has enabled many fishermen to survive, is not only restricted, but now movement among subcategories of species is restricted. This chopping up of the fisheries has reduced the mobility and flexibility that has been so essential to the survival of the independents.”
Locked into one fishery they don’t have the permits to rig their boat to access another fishery. Their quotas are reduced, their options limited, and they backed into a corner and forced to sell. The independents need to find a way to be involved in the regulatory process, they must organize, if they are to have a chance of survival, otherwise the industry will continue to consolidate.
“Larger fleet owners have more flexibility to adapt to regulatory changes. The small owners struggle to hold on in face of rising expenses, regulations, and stress. It is similar, though more complicated, like when Kmart or Wal-Mart come to town, driving out small family businesses. I’m not saying the big fleets control this situation, but they have more money, clout and political power. They have more employees and that can get the ear of a politician to respond to them.” “They do not manipulate the system, they are just in a better bargaining position to see which way the regulatory winds are blowing and can steer a more favorable direction.”
Many of the legal arguments with NOAA and NMFS are fights over interpretation of words and regulations. He cited the case of fishermen he is defending, who gill net sturgeon on the Mississippi River now prohibited under the Endangered Species Act. The courts frequently defer to NMFS because the agency is supposed to have some expertise. But, says Flanigan, NMFS has misinterpreted the regulations in some cases and they do not always get the science right. “They abuse the interpretation of words to get what they want.” This same abuse of words is also being litigated in Boston in Amendment 16 of the groundfish plan concerning sectors.
Another important issue facing fishermen is the prosecution stance NMFS is taking on enforcing regulations. Flanigan said NMFS has moved to pressing for more criminal charges against fishermen. Criminal charges bring another dimension to the threats to fishermen’s livelihoods and their privilege to fish. Flanigan said, “People often know things are wrong, but are uncertain about what to do. They should not be afraid to seek legal advice early, rather than later.” An example he gave was when a fishermen receives a NOPS or NOVA notice they only have 30 days to protect their rights. Failure to respond is considered a default. If they are fishing they could be at sea for 15 of those 30 days. Flanigan said, “If a fisherman receives something in writing from NMFS they have a very limited time to protect their rights and they should seek advice immediately.”
Attorney Patrick Flanigan has a general legal practice and maritime law firm in Swarthmore, Pennsylvania. 484-904-7795, www.pfmaritime.com