Salvage Law

Salvage Law.

In order to understand Captain Sealby's and White Star Line's thinking, motivation and their actions (or lack of action) after the collision, the elements of salvage law must first be understood. The following discussion is not to be considered legal advice or a legal opinion. To the extent that our current salvage action may rest on some of the principals described below, and to better assess our analysis of the legal principals that may have influenced the events surrounding the Republic's loss, the reader should consult an attorney competent in admiralty law for an independent opinion.

We have also provided several links to Salvage Law resources available on the Net at our Useful Links page. Information regarding our current legal claim against Republic can be found within our Legal Notices section.

The following discussion is designed to provide only one possible context in which to understand White Star Line's and Captain Sealby's decisions and actions during the 39 hour period between the Florida-Republic collision and the Republic's loss. Other interpretations may be possible.

Salvage Law and the Salvors' Compensation

Salvage law has evolved over centuries, and has its origins in antiquity. Laws concerning maritime salvage are found within the Edicts of Rhodes, the laws of the Romans, the Justinian Digest, the Medieval Laws of Oleron, the Code of the Hanseatic League and were of such significant importance as to be jurisdictionally determined within the Constitution at the founding of the Republic. Salvage law existed then, existed at the time of the Republic's collision and foundering, and exists today.

A cornerstone principal of salvage law is that the successful efforts of a salvor who has voluntarily risked himself and his property to save lives, ships and property of others imperiled at sea - should be amply rewarded. This policy not only promotes the social and humanitarian benefits of the saving of life and property at sea, but also preserves and enhances maritime commerce.

Justice Story summarized it well, as he so often did:

In cases of salvage, the measure of reward has never been adjusted by a mere estimate of the labor and services performed by the salvors. These, to be sure, are very important ingredients; and are greatly enhanced in value, when they have been accompanied by personal peril and gallantry, by prompt and hardy enterprise, and by severe and long-continued exposure to the inclemencies of the winds and waves. But an enlarged policy, looking to the safety and interest of the commercial world, decrees a liberal recompense, with a view to stimulate ambition, by holding out what may be deemed an honorable reward.1

Indeed, the law of salvage is so well settled that it is sometimes said to be the jus gentium2 or the international law of the sea.3 Under this well settled doctrine of international law, salvage service is one which is rendered voluntarily to a vessel which needs assistance and which is designed to relieve her from some distress of danger either present or to be reasonably apprehended.4 As set forth by the U.S. Supreme Court:

Salvage is the compensation allowed to persons by whose voluntary assistance of a ship at sea or her cargo or both have been saved in whole or in part from impending sea peril, or in recovering such property from actual peril or loss, as in cases of ship wreck, derelict, or recapture.5

In order to have a valid claim for having rendered salvage services, the salvor must show that: 1. the property saved was imperiled; 2. his services were voluntarily rendered (the salvor was under no legal or official duty to render assistance); and, 3. his efforts, in whole or in part, contributed to the saving of the property.

The Courts have given "peril" wide latitude. It is well settled that the peril necessary to constitute a salvage service need not be one of "imminent and absolute danger."6 It is enough that the property is in danger, either presently or to be reasonably apprehended.7 "A situation of actual apprehension, though not of actual danger, is sufficient."8 It is important to note that it is not the degree of peril that makes for salvage service. If distress or peril is present then, accompanied by voluntary service and success, a valid salvage service has been performed, entitling the salvor to a salvage award. The degree of peril, whether slight, moderate, or severe, affects only the amount of the award, but not the entitlement of the salvor to a salvage award.9

While the typical act of salvage involves the rescue and tow of a vessel at sea, the range of situations that can constitute salvage is quite broad. Among examples of salvage are the following: the escorting of a distressed ship to a position where aid can be rendered; giving information on how to avoid an obstruction such as an ice floe or to avoid running aground; carrying a message which results in the provision of emergency assistance. In general, it can be said that, so long as a vessel is in danger, almost any voluntary act that contributes to its ultimate safety or rescue may qualify as an act of salvage.

A salvor who has earned the right to a salvage award for the successful voluntary salvage to a vessel in peril has a preferred maritime lien on the vessel.

The Salvage Award

Salvage awards are given for the salvage of property, not life. Salvors of human life, however, who have taken part in the services rendered on the occasion of the accident giving rise to salvage, are entitled to a fair share of the remuneration awarded to the salvors of the ship, her cargo and accessories. In other words, the trial court will also consider moral as well as economic issues.

The Courts have traditionally followed the long standing guidance provided by the Supreme Court more than a century ago in their computation of a salvage award. In The BLACKWALL, Justice Clifford set out the six factors to be considered in determining the amount of the salvage award.10 The Second Circuit has arranged them in descending order of importance as follows:

  1. The degree of danger from which the vessel was rescued;
  2. The post-casualty value of the property saved;
  3. The risk incurred in saving the property from impending peril;
  4. The promptitude, skill and energy displayed in rendering the service and salving the property;
  5. The value of the property employed by the salvors and the danger to which it was exposed;
  6. The costs in terms of labor and materials expended by the salvors in rendering the salvage service. 11

The items taken into account in assessing the value of the property saved include not only the ship, but also her freight and cargo.

In considering its award, the court not only considers the peril immediately faced by the vessel but the dangers presented by the situation that might have forseeably developed but for the actions of the salvors.12

Public policy is that salvage awards should be liberal in the form of a "reward," not quantum meruit.13 Public policy dictates that a salvor's award should be such as to encourage others to aid vessels in distress.14 "Public policy requires that such a promise of reward should be held out, in case of success, that all those in a situation and competent to render relief, shall be eager to do so from the mere hope of gain."15 The salvage award should be neither too much nor too little. It must be sufficiently liberal to encourage salvors but not so high as to discourage vessel owners from seeking assistance.16

The possiblity of salvage claims presented by vessels voluntarily assisting in the rescue were, no doubt, of very real concern to White Star Line. Indeed, as a result of the rescue, such suits were filed against the Florida. With the total loss of the Republic, White Star Line became immune from such claims. See: Self Insured Without Recourse, where we discuss a shipowner's maximum liability permitted under 1909 law.

An additional libel was filed yesterday against the Italian Line steamship Florida. Edward M. Timmins, owner of the tug John J. Timmons; Robert Deakin, the Master and managing owner of the tug Mutual; David Roach, master mariner, and David O'Laughlin seek, in the United States Court, to recover money for salvage, alleging that the services of their tugboats were valuable and that, as the Florida is worth more than $400,000, they are entitled to liberal salvage. 
In the Timmins proceedings process is issued only against the vessel's cargo. The papers filed tell the story of the collision, and say that the Timmins fell in with the Florida near Fire Island, and, with the Mutual, helped the ship into port. . . .

NY Times, Jan. 30, 1909

However, the owner in possession of the property does not have to accept an offer of salvage.

He refuses such offers at his own risk.

FOOTNOTES

1Rowe v. The BRIG, 20 F. Cas. 1281, 1283 (C.C.D. Mass. 1818) (No. 12,093). 
2The law which all nations use. See generally MARTIN J. NORRIS, THE LAW OF SALVAGE (1958) [hereinafter NORRIS]; 3A BENEDICT ON ADMIRALTY, ~~1-129 [hereinafter BENEDICT]; Donald A. Kerr, The Past and Future of "No Cure-No Pay," 23 J.MAR>LAW & COM> 411, 41-17; GILMORE AND BLACK, THE LAW OF ADMIRALTY, ~ 8-1 and accompanying notes (2d ed. 1975) [hereinafter GILMORE AND BLACK]. 
3See, e.g., GILMORE AND BLACK, supra note 2 ~ 8-1. 
4Mcconnochie v. Kerr, 9 F. 50, 53 (D.N.Y. 1881). 
5The SABINE, 101 U.S. 384 (1880). 
6The PLYMOUTH ROCK, 9 F. 413 (D.N.Y. 1881). 
7The PLYMOUTH ROCK, 9 F. at 413; Beach Salvage Corp. v. The CAP'T TOM & The TOME R. JR. 201 F. Supp. 479 (S.D. Fla. 1961); Unnamed but Identifiable Master & Crew v. Certain Unnamed Motor Vessel, 592 F. Supp. 1191 (S.D. Fla. 1984); NORRIS, supra note 2 ~ 63. 
8The PLYMOUTH ROCK, 9 F. at 416; see also Sears v. S.S. AMERICAN PRODUCER, 1972 AMC 1647 (S.D. Cal. 1972); Ft. Myers Shell & Dredging Co. v. BARGE NBC 512, 404 F.2d 137 (5th Cir. 1968); Platoro Ltd. v. Unidentified Remains of Vessel, 614 F.2d 1051 (5th Cir. 1980), cert. denied., 464 U.S. 818 (1983); Hernandez v. Roberts, 675 F. Supp 1329, 1988 AMC 1843 (S.D. Fla. 1988). 
9NORRIS, supra note 2, ~ 63. 
10The BLACKWALL, 77 U.S. (10 WALL.) 1 (1869). 
11Ocean Servs. Towing , 810 F. Supp. at 1263, (citing B.V. Bureau Wijsmuller , 702 F.2d 333, 339); Brown v. Johansen, 881 F.2d 107 (4th Cir. 1989) (noting hierarchy of factors); Platoro Lts. v. Unidentified Remains of Vessel, 695 F.2d 893, 904, cert. denied , 464 U.S. 818 (1983) (listing factors in this order). 
12BENEDICT, supra note 2, ~~ 249-250. 
13Or, essentially, not merely for the typical fees. Seaman v. TANK BARGE OC601, 325 F. Supp. 1206, 1209 (S.D. Ala. 1971); Lancaster v. Smith & S/Y CHANDRA, 330 F. Supp. 65 (S.D. Ala. 1971); B.V. Bureau Wijsmuller , 702 F.2d at 308; see also BENEDICT, supra note 2, ~ 232. 
14Tonder v. M/V The BURKHOLDER, 630 F. Supp. 691 (D.C.V.I. 1986). 
15Tidewater Salvage, Inc. v. Weyerhaeuser Co., 633 F.2d 1304, 1307 (9th Cir. 1980). 
16The VEENDAM, 46 F. 489 (D.N.Y. 1891).

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