This article is not intended to be an in-depth discussion of the ancient concept of marine salvage as it applies to all aspects of salvage but is instead a general overview as such concept applies to property salvage under maritime law. In general terms, the doctrine of marine salvage allows for a maritime court to monetarily reward or compensate a volunteer salvor that “saves” a vessel or other maritime property from any marine peril. Such a marine salvor will have a maritime lien on the saved property for this monetary award, but the civil action for the salvage reward must be brought within two years after the salvage services were performed. 46 U.S.C. §80107(c).
The general requirements for marine salvage are that there be (1) salvage-eligible “property” at risk of loss/damage from “marine peril” (2) which is saved in whole or in part (3) by voluntary actions of a marine salvor who has no existing duty or contractual obligation to save the property. The SABINE, 101 U.S. 384 (1879). The reward for such voluntary marine salvage is determined by the Supreme Court within its discretion based on a review and balancing of a variety of six factors, including the value of the property saved, the degree of danger from which the salvaged property was rescued, the labor and expenses involved as well the risks faced by the salvor and his own equipment in saving the property. The Blackwall, 77 U.S. 1 (1869). However, while the award cannot exceed the value of the property saved, there have been salvage awards into the millions of dollars because of the value of the property saved. Such was the case of an award of $4.125 million dollars to a salvor representing 12.5% of the value of the external fuel tank for the space shuttle and transport barge that was salvaged during a tropical storm. Margate Shipping Co. v. M/V JA Orgeron, 143 F.3d 976, 993 (5th Cir.1998).
Normally, what constitutes property that is subject to marine salvage is pretty straightforward, such as a vessel and/or its cargo that is subject to a marine peril. However, just what type of property would be considered “salvageable property” becomes complicated when the property is not a vessel but is still rescued from a maritime peril. For example, the issue of whether aircrafts which are recovered on or over navigable waters are subject to salvage claims is in debate under the general maritime law as well as the Salvage Conventions.
The Salvage Convention of 1989, which the United States Senate ratified in 1991 and which became effective in the United States in 1996, defines salvageable property broadly as “any property not permanently and intentionally attached to the shoreline and includes freight at risk.” (Article 1(c) of the 1989 Salvage Convention.) However, under the general maritime law jurisprudence, salvageable property needs to have some “maritime nexus,” such as a ship or vessel, or having some relationship to ships and vessels, such as coming from a ship or vessel, before it will be subject to being salvaged. Cope v. Vallente Dry-Dock Co. 119 U.S. 627 (1887). To have this maritime nexus, the case law has indicated that the property need not be a vessel or cargo, but must be something that can be lost and saved under conditions that give rise to admiralty jurisdiction. Maltby v. Steam Derrick Boat, 16 F.Cas. 564 (E.D. Va. 1879). So far, the courts and the Fifth Circuit have expressly sidestepped the issue of whether the adoption of the Salvage Convention alters the prior general maritime jurisprudence. Solana v. GFS Development Driller I, 587 F.3d 266 (5th Cir. 2009).
In a recent case, a vessel owner brought an action for maritime salvage with regards to a helicopter that made a precautionary or emergency landing on the helicopter deck of the vessel owner’s anchored vessel without first calling for permission to land. The vessel owner sought a salvage award based on the value of the helicopter in addition to any out-of-pocket expenses incurred. Sunglory Maritime Ltd. v. PHI, Inc., 2016 WL 852476 (E.D. La. March 2016) 2016 A.M.C. 760. This case brought all of the questions regarding marine salvage into focus. One of the first questions presented was whether the helicopter, which had not crashed into or landed on water, was “salvageable property” under general maritime law and/or the Salvage Convention. Again, the court sidestepped the issue of determining if the Salvage Convention definition broaden the general maritime definition by finding that as a matter of law, this particular helicopter had sufficient “maritime nexus” and was salvageable property under maritime law to warrant a salvage award. The court held that because the helicopter mainly transported passengers to and from offshore platforms over navigable waters, which is a function traditionally performed by waterborne vessels, admiralty jurisdiction was applicable to the helicopter, relying on the U.S. Supreme Court case Offshore Logistics, Inc. v. Tallentire, 477 U.S. 207 (1986) and the Fifth Circuit cases of Smith v. Pan Air Corp., 684 F.2d 1102 (5th Cir. 1982) and Ledoux v. Petroleum Helicopters, Inc., 609 F.2d 824 (5th Cir. 1980). Therefore, the Court determined a helicopter that transports passengers to offshore platforms over navigable waters can be salvageable property that may be subject to a salvage award if recovered or saved in navigable waters. The court further noted that analyzing whether the helicopter could be considered a “marine object” and salvage-eligible property is a separate analysis from whether the helicopter was “in marine peril” under the salvage elements.
Moving on from the question of whether the helicopter was salvage-eligible property under maritime law, the court looked into the questions of (1) whether the helicopter “faced a marine peril” when it decided to make an emergency or precautionary landing on the helipad deck of vessel due to an unexplained engine noise; (2) whether the vessel and its crew rendered any voluntary assistance to the helicopter and (3) whether the salvage attempt succeeded in whole or in part. The record noted a dispute as to whether the helicopter was actually in distress, whether the helicopter crew secured the helicopter on deck without any assistance from the vessel crew members or whether vessel equipment was used on the helicopter other than the tie-down cleats. There was no dispute as to the third element as to the success of the operation since neither the vessel nor the helicopter suffered any damage from the landing of the helicopter and the securing of the same to the deck of the vessel. However, the vessel ultimately did have to deviate from its route to transport the helicopter on its deck into a port where the helicopter and crew was then removed as it was determined that the helicopter could not be repaired and flown off of the vessel.
The court noted that whether a marine peril existed was a question of fact and that that peril “need not be one of imminent and absolute danger; the danger must simply be present or ‘reasonably to be apprehended’” citing to Fort Myers Shell & Dredging Co. v. Barge NBC 512, 404 F.2d 137 (5th Cir. 1968). Because there was a conflict in the testimony of the nature of the helicopter’s problems in requiring a “precautionary” landing, the Court allowed for additional discovery time. Also, because there were disputed facts on the remaining issue of whether the vessel “voluntarily rendered service,” the motion for summary judgment by the helicopter owner to dismiss the salvage lawsuit was denied by the court. Sunglory Maritime Ltd. v. PHI, Inc., 2016 WL 852476 (E.D. La. March 2016) 2016 A.M.C. 760.