By John K. Fulweiler, Esq.
This economic wave we’ve been riding high on ain’t going to last. Like a mean header, the market’s winds will shift and we’ll all be missing the fiscal layline shortly and here’s where the maritime law might make you some money. You see, a helping hand at sea can sometimes yield a handsome salvage award.
I love the concept of marine salvage; a bias that springs from the fact salvage awards largely paid for my college and law school. In aid of preventing the loss of vessels and their cargo to the sea, the law of maritime salvage tosses the concept of time and materials billing overboard and embraces the monetary mechanics of a salvage award. That is, a volunteer who successfully renders aid to a vessel in distress is entitled to an award for his/her efforts which is almost always far in excess of any time and materials calculation. The award is the carrot to induce a fellow sailor to risk their own life and property to save the property of another and it works, really well. I’d venture that over the long legged history of admiralty law, billions upon billions of dollars have been saved through the efforts of amateur and professional salvors – a remarkable testament to this unique legal remedy.
Like an Opti Green Fleet class nodding their heads on a rainy day in the basement of some East Coast yacht club, the theories of boat speed and racecourse tactics seem straightforward enough. However, when the rain breaks and the afternoon breeze fills in, the Green Fleet proves execution takes practice just as pursuing a successful salvage takes an understanding of all of its permutations.
There are two ingredients to the salvage recipe. First, you need to establish a salvage was performed which requires the following three elements: (a) a vessel in actual or imminent peril; (b) a voluntary effort and (c) success, in whole or in part. A vessel on fire, aground and taking on water are classic examples of a vessel in peril, but these are vanilla examples. A vessel in fog requiring the reassuring voice of someone guiding them into a harbor by VHF likely also qualifies as a vessel in peril just as a vessel that’s dismasted, rudderless or under the command of an incompetent captain. Even amateurs working on a dock braving hurricane winds and flying debris to secure million-dollar yachts from further damage were entitled to a salvage award!
As for being a “volunteer” this sounds wackier than what the law intends. When the salvage law speaks of a “volunteer” it’s excluding those with a preexisting obligation to assist. That is, a tug company under contract to provide marine assistance services to a barge company can’t likely assert a claim of salvage against a barge owned by that company. Similarly, unless the circumstances exceed what would normally be expected of a crewmember, a vessel’s crew can’t make a salvage claim for, say, working like dogs to save their vessel from sinking. As for “success,” that element basically boils down to consideration of whether your efforts benefitted the vessel.
After many years of prosecuting salvage claims, my opinion is that the threshold to establishing a salvage claim isn’t that high. Assuming you’ve got decent facts, it’s like a speed bump on your way to a salvage award.
The second salvage recipe ingredient is establishing the amount of the salvage award. This is typically done by analyzing various factors associated with the salvage such as the degree of peril faced by the vessel you assisted, dangers you faced, time and expense you incurred, what success you obtained, your skill and efforts and what alternative sources of aid were available. These are sometimes referred to as The Blackwall factors having been laid out by the U.S. Supreme Court in 1869 (don’t be mislead, the concepts of salvage can be seen in ancient Byzantine writings). The takeaway when analyzing the amount of a salvage award is that salvage claims will be analyzed on a low-order to high-order scale. You can safely assume the salvage story beginning with “it was a dark and stormy night” will be in the class of high order while a very benign grounding on a sandbar on a summer afternoon may fall closer to a low order salvage.
In practice (and I know the courts sometimes preach differently) salvage awards are valued as a percentage of the post-casualty value of what was saved. That million dollar yacht you helped salvage might, when you get it into port, only be worth $100,000 which would be the sum you’d be seeking a percentage of – that's an important concept to keep in mind and it encourages the salvor to do everything to preserve as much value as possible.
One other thing, there are a lot of exceptions and little legal eddies that’ll drive your salvage claim onto the rocks. For instance, a vessel owner always has the right to decline salvage assistance meaning you can’t force your salvage services on someone. My thought is if you get involved in a salvage, get an admiralty attorney on the horn, right away, and don't rely on having read this little missive while you're waiting for your spouse. Any admiralty attorney worth their salt takes calls anytime, I sure do.
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.
John K. Fulweiler, Esq. is a Proctor-in-Admiralty representing individuals and small businesses in maritime matters including personal injury claims throughout the East and Gulf Coasts and with his office in Newport, Rhode Island. He can be reached at 1-800-383-MAYDAY (6293) or firstname.lastname@example.org, or visit his website at saltwaterlaw.com.