The Law of the Sea : A Legal Thriller

by Dave Gerard

  The door was propped open a fraction. The light in the room was on. I could see it spilling out from the cracks around the door. The hinge must not have closed all the way. We still couldn’t hear anything from inside.

  Ashley knocked loudly on the door. “Hello?” she said. “Kathleen?” She knocked a few more times, but there was no answer. “Kathleen? This is Ashley Marcum. Is everything okay?”

  “Why wouldn’t she be answering?” Harder whispered.

  “Beats me.”

  “We should go there and make sure she’s alright,” Ashley decided.

  “That’s asking for trouble,” I warned. “Don’t you know Loudamire by now? She’ll probably sue us for trespass.”

  “Come off the lawyer bullshit for a minute,” she said sharply. “She’s a person.” I backed off, stung.

  “Have it your way,” I said.

  “Kathleen?” Ashley called. “We’re coming in.”

  Ashley pushed open the door slowly and walked into the entryway. I followed carefully, as if walking into a booby-trapped temple. I half-expected hidden snakes to fall from the ceiling, or knives to stab from the walls. Or the legal equivalent.

  “Kathleen?” Still hearing no answer, Ashley walked into the bedroom. Then she stopped. I heard her gasp.

  Harder and I rushed in. There, by the bed, we saw a broken bottle of vodka on the floor, leaking cold liquid across the carpet. Next to it was a large bottle of pills, opened, with the contents spilling out.

  And next to the bottle was the immobile form of Kathleen Loudamire.

  “Shit!” I said, rushing over to her.

  “Is she okay?” said Harder.

  I kneeled and shook her gently. “Kathleen!” I said urgently. I tried to check her pulse, but didn’t know how. Ashley pushed me aside and put two fingers to her throat. “She’s breathing.” Loudamire mumbled something. I couldn’t make out what it was. “Call 9-11,” Ashley instructed. Harder ran to the phone and dialed. He gave them the room number. They said someone was on their way. Then Harder called the hotel operator too.

  “What the hell happened?” Ashley whispered, stepping back. She was in shock. “Why would she do this?” I shook my head wordlessly.

  “She was under a lot of stress,” Harder said. “I guess it finally got to her.”

  I thought back to Loudamire’s behavior. She had always acted pretty oddly. I thought about the fatigue. The mental health issues. Harder’s comments about her reputation at Badden & Bock. When I reframed things, I could see it. But until now, I hadn’t. I had always seen Loudamie as a successful, if unpleasant, attorney. A suicide attempt was just not on my radar.

  I looked around the room as we waited for the paramedics to arrive. It was neater than mine, but there was even more stuff. I saw two laptops, an iPad, and a library’s worth of legal briefs and binders stacked up in the corners. I glanced at the desk. There were a couple of papers she must have been working on.

  And then I saw it. On the edge of the desk. Half-flipped open, with the cover page visible. It was no more than a handful of pages, stapled together.

  Memorandum Regarding the Legality of Death in Extraterritorial Jurisdiction – Privileged & Confidential.

  “Look,” I whispered, pointing. Ashley and Harder stopped dead in their tracks when they saw it.

  I stood stock still as the situation flashed through my mind. It was the death memo. The one they had kept from us. The one Judge Graves had refused to give us, even in the face of Gunthum’s blatant lies. I knew that document told exactly what had happened to David Marcum.

  But it was heavily privileged. We couldn’t take it. It would be a serious ethical violation even to look at it. We could get disbarred. Doubly, ten times so in this situation. The girl had just tried to commit suicide, for God’s sake. I didn’t even yet know whether she would turn out to have been successful.

  But I also knew deep in my bones that they were lying about David Marcum. And I knew the truth was in there. How could I close my eyes and remain willfully ignorant while it was staring me in the face?

  “We can’t,” said Harder in an agonized voice, reading my thoughts. “Think about what Remington would say.”

  “I know.” I thought about the ethics exam I took before the bar, with all of its easy bullshit questions that we had laughed at. I thought about what I had gone to law school for. I thought about when I was sworn in as a lawyer. I thought about my parents.

  “If we don’t look now, we’ll never see it again,” I said. “We’ll never find out what happened.”

  “Maybe not,” said Harder, his face contorted. “But we’re members of the bar. We’ve got to uphold the attorney-client privilege. Right?”

  You think you know the answer to this question when you see it on an ethics exam. It’s easy. Circle A, move on. But when it’s real life, and there’s a real client standing behind you, and her brother is dead, and they’re lying about it, it’s different.

  We stood there, frozen in time. I knew we had minutes, at most, before the paramedics showed up. Before it would be too late. Before it would be impossible to get the memo, now or ever.

  In the midst of our indecision, as Harder and I agonized over the choice, Ashley didn’t. She stepped forward and deliberately took the memo from Loudamire’s desk. “Fuck the attorney-client privilege,” she said evenly. Then she folded up the memo and stuffed it into her pocket.

  We gazed at her in shock. “What?” she said defiantly. “I’m not a lawyer. I’m not bound by your rules. And what’s ethical about letting Rockweiller lie and cover up the death of my brother? The right and wrong of this situation are crystal clear to me.”

  I opened my mouth, maybe to argue with her, maybe not, I wasn’t sure. But it didn’t matter. Because at that moment, the door burst open, and a crowd of paramedics and firefighters ran in, brushing past us without a glance, unaware of the terrible ethical dilemma that we had confronted, and the path that we had chosen, as they rushed in to try and save Kathleen’s life.

  Hours later, I was in the hospital, sitting in Kathleen’s room. She was unconscious but stable. After the paramedics had arrived, they asked if one of us would go with her to the hospital, and so I rode with them in the ambulance.

  Once at the hospital, I called Bock’s office to let him know what had happened. Then I found Kathleen’s emergency contact info in her phone and called her parents. They sounded like nice people. They were worried sick, and thanked me profusely for telling them. They said they would be on the next flight out there.

  After that, I just sat there with Kathleen, feeling numb. It almost felt like my mind was switched off. There were no thoughts running through it. A few hours passed by like they were nothing at all.

  At around 3 a.m., Zachary Bock showed up. He was wearing his usual dark suit, but looked disheveled for once. He stiffened reflexively when he saw me, assuming his adversarial expression for a moment. But then he looked at Loudamire, and his face softened. He stood for a few beats and then sat down across from me in a chair by the bed.

  “Hello Jack,” he said quietly.

  “Hey Bock.”

  There was a long silence. I didn’t know what to say to him, if anything. Eventually, I told him what happened, leaving out the part about the death memo. I wondered if Ashley and Harder had read it already, and what it said.

  Bock thanked me for calling the ambulance and taking Kathleen to the hospital. I nodded, and then decided it was time to go. I was beginning to get up when Bock spoke again.

  “Do you have children, Jack?” he said suddenly.

  “No,” I said.

  He nodded absently. “You’re young. I do. A boy and a girl. They’re twelve and fourteen. They want to go to law school when they grow up. Like me.” His mouth twisted a little, with some feeling I couldn’t place.

  “Kathleen has always been hard
on herself,” Bock continued. He was looking at Loudamire, but seemed to be talking more to himself than to either of us. “And I’ve always been hard on her. I’m hard on everyone. But there’s a reason for that. This is a tough business. You have to be able to take the pressure. It’s not a game for the weak of heart. I always impress that on people. If you’re soft, if you’re nice, you’re going to lose. Your client’s going to lose.” There was a certain amount of self-reflection in Bock’s voice. But no regret.

  “People come to us for the best legal advice money can buy,” Bock said. It wasn’t arrogant or prideful for him to say it, because I knew that it was true. “They come to us when they’re backed into a corner. When the stakes are high, and the pressure is on.

  “Life is hard, Jack. That’s the way it is. I’m not doing anyone any favors by being easy on them.” He finally turned and looked at me directly.

  “Go. I’ll take it from here. Thank you for what you did. Sincerely. I know I’ve been tough on you in this case. I won’t pretend otherwise. But you could take it. You were a worthy opponent, Jack.”

  He extended his hand. Our eyes met. For the first time, he really looked at me, and there was no condescension in his face. We shook hands solemnly, and then I took my leave.

  Ashley, Harder, and I sat silently on the bed in my hotel room. We were all cross-legged, forming a triangle on the bed with the death memo in the middle. Ashley and Harder had not read it yet. They were waiting for me to come back from the hospital.

  From the cover page, I observed that the document was written in the typical style of a law firm memorandum. There would be a facts section, followed by a legal analysis, and then an ultimate conclusion. It was customary to write memoranda in the third person, which gave them a certain objectivity, or impersonality. Or at least the appearance of it.

  The three of us looked at each other. It was past midnight. Harder was technically supposed to be off the case. But he didn’t look like he was going anywhere, and I wasn’t about to say anything.

  Eventually, Ashley took a deep breath and picked up the memo. She paused for a moment, as if weighing it in her hands. Then she held it out to me. I took it, flipped to the second page, and began to read aloud. The acoustics were strange in the small hotel room, and my voice sounded almost muffled as I spoke.

  From: Kathleen Loudamire

  To: Zachary Bock

  Re: Memorandum Regarding the Legality of Death in Extraterritorial Jurisdiction

  PRIVILEGED AND CONFIDENTIAL

  Question Presented: Under what circumstances may a corporation be held vicariously liable for negligent homicide or murder on the high seas, outside of the jurisdiction of any state or country?

  Facts: These facts were relayed during a confidential witness interview with Thomas Barber, a crew member on the ship Excelsior on the date in question.

  On [redacted], the Excelsior was anchored at [redacted] in the Indian Ocean. The Excelsior is a vessel owned by Excel Resources, Inc. (“Excel Resources”), which is a majority-owned subsidiary of Rockweiller Industries. The Excelsior was engaged in search and recovery operations for the wreck of what is believed to be the Portuguese carrack Flor de la Mar, which sank in 1511 in that area.

  Aboard the Excelsior were Captain Lloyd Gunthum, seamen Thomas Barber, Michelle Kauller, and Richard Layes, and equipment operators Carl Ruthers and Jason Dubino. Also aboard the Excelsior was David Marcum. Marcum had been on the voyage during the discovery of the Flor de la Mar. Marcum then flew back to the United States, but returned some weeks later due to a dispute with Gunthum.

  Marcum and Gunthum engaged in a series of heated arguments on the date of [redacted]. According to Mr. Barber, he heard “shouting and angry voices” from Gunthum’s cabin during the morning. The arguments continued throughout the day. The subject of these arguments was the contents of the shipwreck that the Excelsior had located, and Marcum’s demand for compensation for purportedly locating the shipwreck.

  On the afternoon of [redacted], Marcum threatened to leave the Excelsior and publicly report the find of the Flor de la Mar, along with its coordinates, to the Malaysian, Indonesian, and Portuguese authorities, as well as to the international news media, unless Gunthum agreed to honor an alleged contract.

  Subsequently, Marcum attempted to leave the ship on a small, motorized lifeboat. Gunthum refused to let him go, citing safety concerns for the crew without a lifeboat as well as the confidential information that Marcum had threatened to reveal. In the ensuing confrontation, Marcum became violent, and Gunthum instructed Barber and Leyes to subdue and confine him. This was carried out, although not without injury. Marcum broke Barber’s nose and arm and gave Leyes a concussion. With the further assistance of Gunthum, Ruthers, and Dubino, the crew was able to tie Marcum to a heavy metal pole on deck using a length of rope, with all due care to ensure Marcum’s safety. Marcum continued to struggle violently and hurled insults and abuse at Gunthum and the crew. Gunthum ordered a guard to be placed on Marcum at all times while he sought advice regarding the situation.

  At approximately 10:45 p.m., Marcum broke free of the restraints with the artifice of a small knife that he had concealed on his person. Michelle Kauller was guarding him at the time. Marcum immediately started for the lifeboat, at which point Kauller aimed a Glock 19 handgun at him and fired several warning shots. One shot hit Marcum in the leg. Marcum turned on Kauller and stabbed her in the stomach with his knife, disarming her and taking her gun.

  Shortly thereafter, Barber, Gunthum, Ruthers, and Dubino arrived on deck, having been alerted by the sound of gunfire. Gunthum was carrying a firearm. Marcum pointed Kauller’s weapon at Gunthum, Ruthers, and Dubino, and told them to stop. Marcum stated that he was leaving in the lifeboat and they should not try to stop him. Gunthum, however, told him to stay put, and pointed his own firearm, a SIG Sauer P938, at Marcum.

  After some additional verbal exchanges, Gunthum fired his weapon twice, hitting Marcum in the chest and killing him. After this, Gunthum stated to the crew that “he was about to fire on me. You all saw it.” Barber states that he saw Marcum edging toward the boat, but was unable to confirm whether he believed Marcum was going to fire. Kauller was unconscious by this time due to loss of blood. She was later revived and her wounds staunched with first aid. Thereafter, David Marcum’s body was weighed down with scuba weight belts and put overboard.

  Legal Conclusion: Rockweiller Industries could be held liable for the death of David Marcum in international waters.

  Analysis: Jurisdiction: A United States federal district court would have jurisdiction over Marcum’s death. The Death On The High Seas Act (“DOHSA”) governs the death of a person that is caused by wrongful act, neglect, or default occurring on the high seas beyond a marine league from the shore of any State. 46 U.S.C. § 30302. In addition, the Jones Act provides an additional remedy if the deceased is a seaman. 46 U.S.C. § 30104.

  Here, Marcum’s death occurred in international waters beyond a marine league from the shore of any State. Therefore, DOHSA would grant a federal court sitting in admiralty jurisdiction over a claim for Marcum’s wrongful death.

  A corporation may be held vicariously liable for the acts of its agents if the agent is acting in the scope of employment. Painter v. Amerimex Drilling I, Ltd., 561 S.W.3d 125 (Tex. 2018). However, a parent corporation will not generally be held liable for the torts of its subsidiaries. Lucas v. Texas Indus., 696 S.W.2d 372, 374 (Tex. 1984).

  Here, Excel Resources could be held vicariously liable for Lloyd Gunthum’s killing of David Marcum under the doctrine of respondeat superior if Gunthum was considered to be acting in the scope of his employment. Painter, 561 S.W.3d 125. Since Gunthum was captain of the Excelsior during a voyage, and was also compensated as a direct employee of Rockweiller Industries, that finding is likely.

  On a more promising note, it should be observed that both DOHSA and the Jones Act preclude
the application of punitive damages in cases of wrongful death. In addition, jury trials are typically not available in admiralty cases, which are instead tried before a judge. See, e.g., Dunham v. Expro Americas, 423 F. Supp. 2d 664 (S.D. Tex. 2003); McBride v. Estis Well Service, 768 F.3d 382 (5th Cir. 2014). Both of these factors would likely reduce the amount of a damages awarded against Excel Resources or Rockweiller Industries.

  However, should the plaintiff discover the above-described facts and circumstances surrounding Marcum’s death, this analysis could change. If Gunthum’s killing of Marcum was determined to be intentional, rather than negligent, Rockweiller could face additional liability. It is possible that Lloyd Gunthum and/or Rockweiller Industries could be held criminally liable if such a determination were made. Accordingly, it is recommended that the company use all available means at its disposal to prevent the disclosure of these facts to any outside parties. This will have the effect of limiting legal exposure, and will also reduce the risk that the location of the Flor de la Mar is discovered.

  /s/ Kathleen Loudamire

  It took me ten minutes to read through the whole thing. We all sat in silence after I finished.

  So that was it, I thought numbly. That was how David Marcum had died. He found the Flor de la Mar. He made a deal with Rockweiller Industries. And then Lloyd Gunthum shot him. They tossed his body over the side into the ocean somewhere, weighted down by the belts.

  “They killed him,” Ashley said dully. Her voice was hollow somehow, as if she couldn’t really feel it.

  “Why would Loudamire put that in a memo?” I wondered, more to have something to say than anything else.

  “I bet it was a mistake,” guessed Harder. “Loudamire must have interviewed Barber before they all got their story straight. She got the truth. Bock probably didn’t want to hear it. But once she wrote it down, he couldn’t destroy it. So they buried it with privilege.” Harder shifted uncomfortably. “I made that kind of mistake once,” he confessed. “Kruckemeyer asked me whether it was legal for a client to dump chemicals somewhere. It was my first week on the job. I wanted to impress Kruckemeyer, so I wrote a whole memo on it. Spent a week getting it perfect.”