MARITIME SALVAGE - ANCIENT AS THE SEA
(Published June 2005)
At 3:40 in the afternoon, on a clear Miami day, a 70-foot, $2.5 million Feadship yacht named ELIZABETH, caught fire. Two employees of a local salvage company were operating nearby and were the first on the scene. As flames emanated from the inside of the vessel, the salvors started a water pump with a fire hose and sprayed water on the port side of the vessel where smoke and flames were observed. As water was sprayed into an open window on the port side, the smoke coming from the vessel changed from black to gray in color and flames were no longer observed. City of Miami firefighters arrived shortly thereafter and the salvage vessel maneuvered to the starboard side of the ELIZABETH to allow the firefighters access on board. When the firefighters arrived and entered the salon of the ELIZABETH the fire was smoldering and no flames were observed. The fire lasted approximately 10 minutes.
Cases such as this arise everyday in waters and ports across the globe and often raise difficult questions regarding the rights and obligations of those involved. The answers typically require knowledge of a unique set of rules developed by maritime cases dating back well over a century.
The owner of the ELIZABETH arrived to find members of the fire department on board his vessel, as well as employees of the salvage company. Believing the fire department to be responsible for saving ELIZABETH, its owner ordered the salvors off the vessel and refused them any compensation for their services. The firm's Miami partners, Jeff Foreman and Darren Friedman, were retained to represent the salvor. Ultimately, a United States Magistrate Judge weighed in and determined that the salvors voluntarily rendered services to a vessel in peril and its efforts saved the ELIZABETH from further damage. The court ruled in favor of the salvor and awarded substantial damages. See Atlantic Marine Towing, Inc. v. M/V ELIZABETH, 346 F. Supp. 2d 1266 (S.D. Fla. 2004).
Pursuant to the general maritime law, three elements must be proved to establish a salvage claim: (1) a marine peril existed; (2) services in question were voluntarily rendered; and (3) the effort was successful in whole or in part. Flagship Marine Services, Inc. v. Belcher Towing Co., 966 F. 2d 602 (11th Cir. 1992). In the ELIZABETH 's case there was not much of an issue as to whether a marine peril existed:It is difficult to conceive of a fire aboard ship which does not place the vessel in peril. The fire may be trivial but if aid is required or requested and given which aid extinguished or contributes toward the eventual extinguishment of the fire, a salvage service has been performed.
M. Norris, The Law of Salvage, '64 (1958). Further evidencing the deep rooted traditions of salvage law, the Elizabeth court discussed the case of The Blackwell, 77 U.S. 1 (1870). At approximately 4:00 a.m. on the morning of August 24, 1867, the British ship BLACKWELL was discovered in the Harbor of San Francisco on fire. A local steam-tug proceeded to BLACKWELL and began to work at extinguishing the fire. The fire department arrived shortly thereafter and completed the task. In addressing its request for a salvage award, the Supreme Court wrote, Service undoubtedly was performed by the members of the fire department; but it is a mistake to suppose that service was not also performed by the steam-tug... Useful services of any kind rendered to a vessel or her cargo, exposed to any impending danger and imminent peril of loss or damage, may entitle those who render services to salvage award. Id. at 19 (emphasis added). More than one set of salvors may contribute to the result, and in such cases, all who engaged in the enterprise and contributed to the saving of the property are entitled to share in the reward which the law dictates for such service. Id at 20. "It is a question of making a contribution". Legnos v. M/V Olga Jacob, 498 F. 2d 666, 671-672 (5th Cir. 1974).
The fact that a salvor has pecuniary motivations is immaterial to this entitlement to a salvage award. Ocean Services Towing and Salvage, Inc. v. Kenneth Brown, 810 F. Supp. 1258, 1262 (S. D. Fla. 1993). The service is deemed voluntary simply by the absence of a legal duty of obligation. The Clarita and The Clara, 90 U.S. 1 (1875). Once the elements of a salvage award are established, the salvor is entitled to payment for the services rendered. The much more difficult question is how much. In that regard, contrary to popular belief, salvage awards are not based on quantum merit, but are a bounty in nature. Allseas Maritime, S.A. v. M/V Mimosa, 812 F. 2d 243 (5th Cir. 1987). "The award on an action for salvage unknown for land activities is not one of quantum merit as compensation for work performed, but is a bounty historically given in the interests of public policy, to encourage the humanitarian rescue of life and property at sea, and to promote maritime commerce." Ocean Services Towing and Salvage, Inc. v. Kenneth Brown, 810 F. Supp. 1258, 1262 (S. D. Fla. 1993). As the U.S. Supreme Court explained in Cope v. Vallette Dry Dock Co. in 1887: "[S]alvage is not always a mere compensation for work and labor; various circumstances upon public considerations, the interests of commerce, the benefit and security of navigation, the lives of the seamen, render it proper to estimate a salvage reward upon a more enlarged and liberal scale." 119 U.S. 625 (1887).
No fixed rule for determining the amount of salvage awards can be based on comparison nor are percentages used to determine the amount of a salvage award. B.V. Bureau Wijsmuller v. The United States of America, 702 F. 2d 333, n. 4 (2d Cir. 1982). Instead, Admiralty Courts have established a number of elements courts should consider in determining the amount of this bounty: (1) The labor expended by the salvors in rendering the salvage service; (2) the promptitude, skill and energy displayed in rendering the service and saving the property; (3) the value of the property employed by the salvors in rendering the service and the danger to which such property was exposed; (4) the risk incurred by the salvors in securing the property from the impending peril; (5) the value of the property saved; and (6) the degree of danger from which the property was rescued. Southernmost Marine Services, Inc., 250 F. Supp. 2d 1367, 1377 (S.D. Fla. 2003); Treasure Salvors, Inc. v. The Unidentified, Wrecked and Abandoned Sailing Vessel, 556 F. Supp. 1319, 1340 (S. D. Fla. 1983); The Blackwall, 77 U.S. 1, 24 (1870). A professional salvor is entitled to a more liberal award than a chance salvor, B.V. Bureau Wijsmuller v. The United States of America, 702 F. 2d 333 (2d Cir. 1982), often including an equitable uplift factor awarded in addition to whatever salvage award was found. Courts realize that professional salvors possess unique skills and must maintain expensive equipment particularly suited for dangerous work. Id. Furthermore, a professional salvor may be entitled to reasonable attorney's fees and costs incurred in establishing his right to a salvage award. Southernmost Marine Services, Inc., v. M./V Potential, 250 F. Supp. 2d 1367 (S.D. Fla. 2003) [awarding salvor $150,000 for salvage of a vessel whose post-casualty value was $400,000, plus reasonable attorney's fees). See also Treasure Salvors, Inc. v. The Unidentified, Wrecked and Abandoned Sailing Vessel, 556 F. Supp. 1319 (S. D. Fla. 1983); Compania Galeana, S.A. v. The Motor Vessel Caribbean Mara, 565 F. 2d 358 (5th Cir. 1978); Cobb Coin Co., Inc. v. The Unidentified, Wrecked and Abandoned Sailing Vessel, 549 F. Supp. 540 (S.D. Fla. 1982).
Awards rendered in salvage cases can vary dramatically depending on how individual courts apply the prescribed legal criterion to the peculiar circumstances of each situation. A thorough understanding of the law in this specialized area, along with access to industry customs and practices and expertise is essential to the successful protection or defense of any salvage case.
