By John K. Fulweiler
Sailing and flying have a lot in common. Still, I’d venture the sea is more forgiving than the wide and empty reaches of the sky. An aviator doesn’t worry much how they’ll get their flying machine off a shoal, stop the flooding seawater or deal with a marine salvor. For boaters, though, these scenarios give us agita likely because they’re grist for the uninformed who preach the horrors of salvage law to the novice and nervous. “You’ll lose your pretty boat to them is what happens,” they say, shaking their heads at your naïvete.
Don’t fear though, these mongers of misplaced maritime legalisms have it all wrong.
The maritime law of salvage does one thing very well: it incites interest in the plight of another’s floating craft. As stark as it may sound, who’d be interested in risking their life, vessel and equipment to save someone else’s vessel for an hourly wage? We’re not talking lives we’re talking property, and there’s little incentive to save another’s fortunes all while putting yours at great risk. Imagine, however, salvage striding across the stage waving arms and shouting over the din that it’ll pay a reward to anyone who renders aid to this foundering vessel, and ‘lo, the amount of the reward will relate to the value of what’s saved. Whoa, huh! You can imagine how a reward changes the incentive matrix and that’s how salvage works. Anyone (professional or amateur) who assists a vessel in peril and whose assistance is successful (even if it just contributes to the overall effort) is likely eligible to claim a salvage award with the size of the award calculated by considering a list of factors such as the degree of peril, the value of what was saved and the risks assumed by the salvor. From a practical perspective, an hour’s worth of effort can conceivably yield a very large salvage award payday and it’s that outcome that sometimes raises passions.
Many times, a boat owner will argue a salvage never took place, but to me that’s like breaking out the protest flag at the post-race tea: too late and not very effective. Indeed while there are certain prerequisites to establishing a salvage claim, it’s not unreasonable to describe the threshold for establishing a salvage claim as being low. Consider instead focusing on what was done. While salvage awards are generally liberal, they aren’t retirement plans and they’re designed to simply encourage the same kind of helpful assistance in the future.
The chestnut that a salvor somehow gets to keep your boat as the prize for its salvage efforts is simply wrong. In almost every instance, the salvor holds a maritime lien which attaches to the boat at the time the salvage service is rendered. Sure, the salvor can go to federal court and likely seek to foreclose its maritime salvage lien and if you ignore the proceedings, the court may have the U.S. Marshall arrest and seize your vessel as security for the salvor’s claim. However, any admiralty attorney worth their salt can easily help you avoid such a situation. Moreover, an arrest doesn’t mean the salvor has your boat. It means the court has taken the boat into its possession.
You also don’t generally get to keep that dinghy you found adrift on the Sound. The concept of “abandonment” under the maritime law is complicated and involved such that it’s generally pretty hard to prove an owner abandoned a vessel. Assuming you qualify as the salvor of the dinghy, you can expect to recover a salvage award likely representative of a portion of the value of what was saved. In some instances, and after public notice is given, you might just be awarded that dinghy, but anything less than seeking the court’s involvement could place you at risk of being accused of having converted someone else’s property.
Whether a boat owner must accept a salvor’s services is nother issue that’s easily muddled. Generally speaking, there’s simply no obligation on the part of a vessel owner to accept salvage services and case law makes clear that salvage services can’t be forced on an owner. If you don’t want salvage services, make that point clear. Still, understand that the terms of your insurance policy may require you undertake efforts to save your vessel and, in some instances, refusing salvage might conceivably create a hitch in your coverage. You should speak to your broker and admiralty attorney to understand the lay of these waters.
Do you remember that interview Dennis Conner gave on the other side of the earth too many years past? The interviewer kept peppering the America’s Cup doyenne with allegations of cheating and Dennis got tired. Through that toothy grin of his, he thanked the host, made some pleasant noise about the audience and got up and left the television set. Next time some friendly sailor tries telling you what the maritime law is, do what I’ll dub a “Conner” and exit stage left with a nod and a smile.
This article is provided for your general information, is not legal opinion and should not be relied upon. Always seek legal counsel to understand your rights and remedies.
Underway and making way.
Admiralty attorney John K. Fulweiler, Esq. practices maritime law on the East and Gulf Coasts. As a former partner of a Manhattan maritime firm, John now helms his own practice located in Newport, Rhode Island where he helps individuals and businesses navigate the choppy waters of the maritime law. John can be reached anytime at 1-800-383-MAYDAY (6293) or via e-mail at email@example.com.